How superinjunctions have made the kiss and tell story (almost) a relic

Expert view: the 2004 case of Naomi Campbell v MGN has moved the goalposts in privacy cases

When the actor Gorden Kaye sought the assistance of the courts in 1990 to prevent the publication of pictures taken without his consent as he lay in hospital seriously injured after a car accident, the best legal brains in the country struggled to find him a legal course of action that would prevent the publication.

At the time the court of appeal expressly noted there was no law of privacy.

Two decades on, there is a gamut of legal remedies available to celebrities or companies who want to use the courts to silence the press. The kiss and tell story is (almost) a forgotten relic.

Most significantly, the courts have established a principle that the "misuse of private information" counts as a wrongdoing, or tort.

The superinjunction is simply a means by which this ad-hoc law of privacy can be enforced before anything is published.

Until the House of Lords in 2004, in Naomi Campbell v MGN, specifically acknowledged that there could be a separate cause of action in privacy, private personal information had been considered by the courts purely in the context of the law of confidence.

It was used, for example, in the 1848 case of Prince Albert v Strange in which Mr Strange was prevented by the court from publishing a catalogue of private etchings made by Queen Victoria and Prince Albert. It was the law of confidence that was used in 1967 in Argyll v Argyll, when the Duchess of Argyll sought to prevent the Duke from publishing in the press secrets of the marital bed chamber.

Everything changed after Campbell, when the House of Lords held that the Daily Mirror had breached her confidentiality rights by publishing reports and pictures of her attendance at Narcotics Anonymous meetings.

From this point onwards, the balance shifted in cases involving issues of privacy, away from the (confidential) nature of the relationship between the parties to an examination of whether the information was private and, if it was, to conducting a balancing exercise between rights to privacy (under article eight of the European convention) and the competing rights to free speech (under article 10).

Privacy in this modern sense can be used to protect information considered private from being published, but also to justify anonymity for the parties involved, as well as sealing the court file and holding the whole case in private.

Privacy is not concerned with whether information is true or false. As long as it is private, as determined by the courts on a case by case basis, then the only defence is whether it is in the public interest.

Although section 12 of the Human Rights Act 1998 requires parties who want to prevent the publication of private information to inform the media before getting any such orders, the recent practice of getting these orders against "persons unknown" or private individuals, often means that the media only find out about these sort of orders once they have been made, by which time it is often too late realistically to challenge them. Pre-publication privacy injunctions have become fairly simple and straightforward to obtain.

One reason for the development of the pre-publication privacy injunction is the line of authority which has developed from the 1891 case of Bonnard v Perryman. This provides that court orders preventing the publication of journalistic articles in libel cases should be the exception rather than the rule and indeed should only be granted if there is "a real prospect of success" at trial. In a case called Cream Holdings v Banerjee, the House of Lords said that "The right of free speech is one which it is for the public interest that individuals should posses, and indeed, that they should exercise without impediment, so long as no wrongful act is done ? Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions". In these cases, it is thought that getting an award of damages after publication is a sufficient remedy if the publication is subsequently found to be untrue. the 2011 case of ZAM v CFW and TFW is a rare example of an interim libel injunction. In that case, in granting a pre-publication defamation injunction, the Judge held that there was no evidence to support allegations of the "most grave and serious kind."

Defamation is still available after publication as a legal course of action, but where there is any scope for arguing the information concerned is private, privacy will always now be first port of call. In addition to obtaining a pre-publication privacy order, it is also possible to get injunctive relief from the courts under the Protection from Harassment Act 1997, it having been established in the case of Thomas v News Group Newspapers Ltd in 2002 that, in principle, publications are capable of constituting harassment. In the case of Howlett v Holding in 2006, Mr Justice Eady said "in some circumstances, the exercise of one's right of free speech can fall within the concept of harassment, provided the other necessary ingredients are present. For example, it would have to be classified as unreasonable and oppressive conduct". This has been most recently used to prevent publication of material in the the case of ZAM v CFW and TFW.

Finally, parties may be able to resort to breach of copyright if private pictures have been obtained unlawfully or without consent.

Gill Phillips is director of editorial legal services for the Guardian