Using injunctions to control the media has been thrust into the spotlight by recent cases involving the royal family.

But in trying to stop sensitive stories, celebrities may generate unwanted coverage.

Chris Baker assesses the fine line between the rights of privacy and of freedom of speech

Editors, from national newspapers through to trade magazines and local freesheets, all dread injunctions.

Having to involve lawyers in any story can be time consuming and costly, and the risk of having to pulp an entire print-run brings headaches of huge proportions.

But are injunctions becoming a more widely used tool for killing or 'spiking' the story? Most media lawyers think probably not.

There have been some high-profile cases recently.

Buckingham Palace managed to secure an injunction against The Mirror when one its reporters infiltrated the Royal staff and the paper agreed not to print any more material than it had already published.

Former Royal aide Michael Fawcett also obtained an injunction against the Mail on Sunday to stop a story about his work with Prince Charles.

Further back, footballer Garry Flitcroft resorted to an injunction against the Sunday People to stop it running a piece about alleged infidelities, and television personalities Jamie Theakston and Angus Deayton have used similar tactics in relation to stories about their private lives.

But, in the main, lawyers do not take the view that this spate of injunctions signals a broader trend.

Freedom of speech is not under attack, they say.

'For the past two decades, injunctions have been used in much the same way as they are used now,' says Cameron Doley, managing partner of London law firm Peter Carter-Ruck & Partners.

In fact, ten years ago, his firm was involved in obtaining an injunction when a member of the Royal staff was set to 'spill the beans' in the press, Mr Doley adds.

City firm Herbert Smith was instructed by Buckingham Palace in the Mirror case.

Partner Richard Fleck agrees there has been no explosion of injunctions.

'It is just a series of circumstances that happened to come together,' he says.

'What you are seeing is no more, no less than the fact that there have been a number of issues that have warranted a certain response.'

But the proliferation of the mass media, with celebrity magazines, an aggressive tabloid press and Internet sites, may account for an apparent increase in injunctions.

The Gazette's media law columnist, Amber Melville-Brown, a solicitor with London-based David Price Solicitors & Advocates, argues: 'Injunctions are more widely obtained in confidence than in libel.

In our modern celebrity-centric world, they are also more and more frequently used by celebrities and others in the public domain seeking to protect confidential information about themselves.'

Simon Smith, managing partner of London media firm Schillings, does not pull any punches.

'For my part, I do not perceive a more flagrant abuse of privacy and confidence in the tabloid newspapers than had previously been experienced, as to me their style, content and tone of reporting is as pitiful and self-serving as it always was,' he says.

'But perhaps there are more opportunities for abuse of privacy rights with the plethora of celebrity magazines and new forms of media and communication that were previously unknown.

Together, these would account for the existence of a perceived wider use of injunctions.'

Mr Doley adds: 'There may have been an increase because there are more media outlets and the press is slightly less restrained than it was ten or 20 years ago.' He considers it highly unlikely that a newspaper would have dreamed of sending a reporter to work for the Royal family two decades ago.

Mr Doley does not reckon there has been any major change to the legal landscape relating to libel since the Human Rights Act 1998 came on to the statute book in 2000.

'One of the key issues is to balance the right of privacy and the right to freedom of speech,' he says.

'There is a special condition in the Human Rights Act that relates to injunctions - section 12.

There is no point in trying to push ahead with an injunction if the issues of freedom of expression outweigh privacy.'

Mr Fleck adds: 'Those balances are not always easy to get right.'

Injunctions can also work against the client, and only serve to make matters worse.

Ms Melville-Brown says a major consideration would be the potential outcome if the injunction application is unsuc-cessful - creating a far bigger story.

'A failed application may give rise to not only the original article being published, but it will give the news-paper the opportunity to run the sensational headline "the story they tried to gag", giving it even greater publicity than it may have attracted in the first instance,' she says.

Mr Doley says: 'In the past few years, there have been privacy cases which became much more of a story because of attempts to get injunctions.

Stories about Jamie Theakston would have just come and gone but were very much there in people's minds because of attempts to stop them being published.'

But even successful applications have potential pitfalls of which clients need to be made aware.

'One can still see the potential of opening one's papers to see the headline "Gagged", as this may be just as bad publicity for the client as if the information was published,' Ms Melville-Brown adds.

The Fawcett case is a prime example of how the injunction only fuelled the story.

The global aspect of the media is also an important issue, says Mr Fleck.

'There are problems to do with the Internet and there are problems with external territories - Italy will publish the story, Germany will publish it.

You need to consider whether the remedy will achieve the objectives.'

Mr Smith adds: 'Will it be safe to seek an injunction only in England and Wales? Scotland, being a separate jurisdiction, is not bound by the injunction of an English High Court and, since at least Spycatcher, has allowed its newspapers to report freely matters restrained by the English courts, provided of course those newspapers do not also circulate south of the border.

'In many cases, therefore, one needs to apply for an interim interdict in the Court of Session.

I personally find it helpful being admitted as a solicitor in the Scottish jurisdiction as well as that of England and Wales.

It enables you to see aspects others are blinkered to.

Some people think the world begins and ends in London.'

And there is always the issue of costs.

'As with any injunction, the client needs to be warned of a cross-undertaking in damages, should an injunction successfully obtained be later overturned,' Mr Smith adds.

'In such circumstances, a defendant might claim the loss suffered as a result of the imposition of the judgment.'

Ms Melville-Brown also points to the dangers of injunctions being overturned.

The court considering an application has to make a judgment as to whether the claimant will be able to convince a trial that the statement is defamatory and indefensible or a breach of confidence.

But it will not have the same level of information that the trial judge would have and the ultimate trial may not find in the claimant's favour, even when an injunction has been granted.

'The costs associated with such an undertaking might run to hundreds of thousands of pounds, where, for example, the injunction is granted after the presses have started rolling and the newspaper is required to stop publishing, substitute a new page or pages, and pulp already printed issues the newspaper containing the injuncted material,' she warns.

Therefore, for any lawyer working on an injunction, speed is of the essence.

'You have to move fast and be very clear about what your objective is and focus on achieving that objective,' says Mr Fleck.

'You must not get distracted - it's very easy to worry about this dynamic or that dynamic and lose your focus on the key issues.'

Mr Smith says: 'Instinct, experience, speed of action, determination and resolve are the key elements.

You make your own luck, but really that should not come into it.

The battle should have been won before you go before the judge.'

It also helps to be taken seriously by the publication's lawyers, and being a solicitor-advocate is a boon as then you can make the application yourself if there are no counsel available, or cost prohibits it, he adds.

The flood doors may not have opened but the issue is certainly not going to go away to judge by the news-stands.

As long as the papers feed the fascination with the famous, the applications will continue to roll in.

And lawyers will have to work quickly and realistically, while warning that any attempt to kill a story could give it a new lease of life.

See media law update, (see [2003] Gazette, 19 December, 16)

Chris Baker is a freelance journalist