Super Injunctions

Jeremy Clarkson and Andrew Marr make unlikely bedfellows. And before either of them reach for their libel or privacy lawyers to injunct me, I speak not of any private relationship between the two but the legal issue that they have in common. Both applied for, and were granted, injunctions to protect aspects of their private life. But both 'voluntarily' gave up on those privacy injunctions.

Mr Clarkson told The Daily Mail the privacy injunction prohibiting the exposure by his first wife of aspects of his private life was rendered pointless by Twitter. While Andrew Marr confirmed in his written statement to the Joint Committee on Privacy, that while he had sought protection in the first instance to protect vulnerable others, he felt that injunctions should not last forever. 'I had never intended the injunction to be permanent. It was a useful emotional plaster at a very traumatic time, not permanent plastic surgery,' he wrote.

By falling on their private swords, do the actions of Messrs Clarkson and Marr invite us all now to give up on our privacy? Are court orders prohibiting unjustified invasions into private life really not worth the paper that they are written on as long as there is a blogger in a bed sit in Bognor or a Tweeter, in a townhouse in Tottenham on the scene? All of us are entitled to live some sort of private life, the blogger and the Tweeter, the private individual and the public figure. The fact that Mr Clarkson may have decided, albeit reluctantly, to declare open house on his former marital affairs doesn't herald a need for us all to move into a glass house against which the media can throw their stones.

The right to respect for our private and family life, our home and our correspondence is guaranteed by Article 8 of the European Convention on Human Rights. It is not, needless to say, an absolute right, and has to be balanced against other rights where they come in to play. In cases of media reporting, the Article 10 right of freedom of expression is naturally, the most likely opponent.

Privacy injunctions are not handed out by the judiciary like sweeties to demanding children. They are only granted where the applicant can show a real risk of publication and that they are more likely than not to succeed at trial. The courts of England and Wales are experienced in balancing the competing rights of Articles 8 and 10, of weighing up the right to privacy against the right to free speech, and in granting orders preventing...