Injunctions: The Good, The Bad & The Super

Redacted Times page about super-injunctions

Yeah, we get the joke, Harding: But where's the Caitlin Moran commentary?

The traditional media silly season has kicked off a bit earlier this year. Rather than waiting for the traditional starting gunshot that is Parliament dissolving, packing its buckets and spades and heading off for the hols, the media is indulging itself in a frenzy of increasingly hyperactivity over Wills ‘n’ Kate, Cam ‘n’ Clegg (uncunningly disguised as the AV referendum) and the Greatest Threat to Western Civilisation As We Know It Since The Last One, the super-injunction.

Of course, after Kate has made an honest man of Wills this week, and the country decides on AV next week, that more or less leaves the latter to run and run. And, as they say in Hollywood, it sure got legs. The trouble is, one leg points one way, to which the other is directly opposed.

With the childish hyperbole that is increasingly the norm among today’s kidult university-educated journalists (even on the increasingly lightweight “heavies”), all injunctions are “super”, even when they’re not, some are even “hyper”, even though there has only ever been one hyper-injunction (a word made up by Liberal Democrat MP John Hemming) and that had nothing to do with privacy or the media per se, and the media has closed ranks to fulminate against, in words of Stephen Glover in the Daily Mail, “Amoral judges, shameless celebrities and a Britain that’s coming close to a police state”, with that ever-favourite judicial bugbear, Eady J, coming in for special attention (such as here in the Telegraph and here  in the Indy). In short, Their Honours are accused of making up privacy law as they go along, without recourse to any legislation enacted by Parliament. Those bewigged bench-entrenched bastards.

Whew. There are several aspects of media law swirling around here, some relating to privacy law and others to defamation law and a few relating to both which, either through ignorance or intent, the national media are conflating into one.

It’s a worthwhile exercise to at least pick apart some of these threads and make an attempt to sort them all out.

And while doing so, it’s also worthwhile to adopt the adage of that wise old bird Confucius: “Above all, call each thing by its correct name.”

Independent front page about Andrew Marr

Andrew Marr: Smarmy, jug-eared hypocrite, yes. Criminal, no.

Let’s start with the Andrew Marr case. First off, was it a “super” injunction, i.e. an injunction whose very existence could not be revealed? Well, yes it was – for about six months. When originally granted in January 2008, the existence of the injunction itself could not be reported. But that “super” part was lifted the following June, after a challenge by Private Eye, as the Eye itself  and its former editor, Richard Ingrams, reported at the time.

So, since June 2008, the existence of the injunction could be reported, though the media was prohibited from reporting who other than Marr was involved and why it had been granted. It was no longer “Super”; it was a Clark Kent injunction, a bog standard injunction, a common or garden injunction. There was, of course, intense online speculation as to who the other parties involved were, but through simple jigsaw identification I was able to come up with the correct names (which reminds me Nick, you owe me a pint).

That is the injunction Ian Hislop kept up the fight against, until Marr finally relented this week and withdrew it, revealing almost all. (The name of the “other woman” is coyly being held back, but is just a Google away.)

Indeed, as the media-lawyerly types behind the Inforrm blog point out, the super-injunction is more or less dead. Far from breeding like rabbits in the springtime, they just aren’t being granted any more in privacy cases, mostly because of a change of attitude by the courts, which have realised they should only be granted in extremely rare and unusual circumstances.

The death of the super-injunction is confirmed circumstantially by the Court Lists, where any super-injunctions would appear if they had been granted, because, in the words of Inforrm, “All injunctions are now given ‘return dates’ – in other words they are made only for a short time and then have to be renewed.  The renewal hearing appears in the Court list and inquiries can be made as to what took place.” And guess what? The media has access to the court lists just the same as m’learned friends, so if any super-injunctions had been granted, you could guarantee there would be merry hell raised on the front pages and airwaves.

A survey of injunctions granting anonymity to the parties involved by the Queen’s Bench Division (the High Court to you and me) by Inforrm for the first quarter of 2011 found there had been eleven hearings, seven of which have produced published public judgments. The others produced “ex tempore”, or interim, judgments. “None of the privacy injunctions granted since 31 March 2011 have been in ‘super-injunction’ form.”

So, excitable media hype about super-injunctions  – such as today’s Times leader, which grimly warns super-injunctions “have become the primary weapon in the arsenal of any celebrity lawyer” (no hype too far for James Harding, the man who put Lady Gaga and Caitlin Moran on the front page of your super, soaraway newspaper of record) – being largely imaginary, what about the rash of yer plain ornery injunctions being taken out lately? Are the judges who grant them making it up as they go along, interpreting the laws any ole how and ignoring the wishes of our elected representatives to hide the identities of rich, white, naughty males (as the Guardian seems to think)?

Briefly, the answers to those questions, in order, are no, no and no. Firstly Parliament, for better or for worse, legislated for privacy cases when it enacted the Human Rights Act 1998, by which English law absorbed the European Convention on Human Rights. This was hardly done via the back door. Those of us who were around and adult and sober enough at the time recall there was very considerable debate in the media and in Parliament about this absorption and its consequences.

Indeed, the then Chairman of the Press Complaints Commission, Lord Wakeham moved an amendment in the House of Lords which specifically aimed to stop the development of a common law of privacy”, while Lord Irvine on behalf of the government said: “The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value.”

So it can hardly be argued now that Parliament was ignorant of a case-by-case, common law development of what would become a Privacy Law when it passed the Human Rights Act. It knew that would happen all right, and so did the media. So it’s exactly wrong to claim, as Fleet Street Fox does in an otherwise splendidly splenetic piece about Marr,  that this is “the creeping privacy law no-one in this country has voted for.” Sorry, Foxy, not only was this openly debated and passed by a democratically elected government, but we went on to re-elect that same government twice more. But maybe you weren’t around or adult or sober enough at the time for it to register.

And as a consequence of this consequence, it was certainly foreseen that judges would have to perform a fine balancing act between the convention’s article 8 (guaranteeing the individual’s right to privacy) and article 10 (guaranteeing the media’s freedom of speech). Such has proved to be the case, with the rights of children not to have to endure playground bullying because of the peccadilloes of their parents being exposed thrown in the mix for good measure.

It’s important to note that, as the law stands, neither article 8 nor 10 can automatically take precedence over the other. Each must be given their due weight according to the individual case to hand. Indeed, if Parliament were to act to give one precedence over t’other, as some media commentators seem to be demanding it should, it would almost certainly find itself in very deep and very hot legal water.

It can’t be argued, as most of the nationals have , that judges are automatically siding with claimants, either. Judges are well too aware of the democratic necessity of freedom of the press, as the Court of Appeal made clear in its judgment on ETK v News Group:

To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers. We have to enable sales if we want to keep our newspapers. Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy. These considerations require the court to tread warily before granting this kind of injunction”. (Emphasis added)

Of course, the media don’t like injunctions, full-stop. Indeed, most journos, me included, are fully paid-up followers of Wellington’s edict “publish and be damned”. And while the courts in some cases are fully prepared to go along with that, they do make the distinction, often lost on editors, that what interests the public is not necessarily in the public interest.

This distinction has often been made both here and abroad, even before the Human Rights Act was thought of. Further refinements of this approach have come from the Court of Human Rights in the case of decision in Von Hannover v Germany in 2005, which drew a line between facts capable of contributing to a debate in a democratic society, such as politicians and the exercise of their functions, and reporting details of the private life of an individual who exercises no official functions, in that case Princess Caroline of Monaco. Earlier, in the English Courts, Baroness Hale had ruled in the Naomi Campbell vs the Mirror case:

The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model’s private life.

The Campbell case is interesting in the wake of the Marr case. Hugh Tomlinson, of human rights lawyers Matrix Chambers, makes the point that the House of Lords has upheld that “there is a “public interest” in exposing the truth and putting the record straight. But where the justification put forward for publication of personal information is not that the person concerned has made false factual statements but has been guilty of hypocrisy in advocating a set of standards or aspirations and behaving differently, much will depend on the particular circumstances, including the person’s role (for example, whether s/he holds or is a candidate for public office) and to what extent their conduct is truly hypocritical.”

In other words, hypocrisy is not in and of itself good cause to reject an injunction. Nor it is not enough for the claimant merely to be in the public eye either. There must be substantially more for the freedom to publish to outweigh the right to privacy. I certainly share Hislop’s disgust at Marr’s doing one thing while espousing the opposite, and that aside, I don’t think journalists should be in the business of either suing or injuncting other journalists. But then I find Hislop’s cosying up to leftie luvvies in front of a right-on audience of North London bien-pesantry on Have I Got News For You rather at odds with Private Eye’s on-going pokes at high-profile journalists who it deems guilty of  getting down with the kids (ask Andrew Neil about this one), or its ill-informed, deliberate spreading of Andrew Wakefield’s now thoroughly discredited MMR scare.

But that’s a personal opinion, and rightly should have no part of any judicial proceeding. We can probably all name half a dozen regimes, past and present, where personal opinion carries much more weight in judicial proceedings. I hope we would all agree we would rather not be part of any one of them. If you do want to be part of one of them, get in touch with Ken Livingstone: I’m sure he has Hugo Chavez’s mobile number.

The other point worth bearing in mind is that not all injunctions are bad: those involving blackmail, for instance. This was conveniently forgotten by the Daily Mail when it used the case of OPQ v BJM to bludgeon Mr Justice Eady over the head for his unusual injunction contra mundum (applying to everyone, everywhere) ruling.

If you read what details of the case are available, it was an outright, blatant attempt at blackmail, as noted by the judge: the defendants’ representative had demanded a large sum of money from the claimant’s lawyer not to send intimate photographs and other information to a newspaper group.

What was missing from the Daily Mail’s indignant story was that the newspaper group in question was Associated Newspapers, publishers of the, er, Daily Mail. Hmmmm…

Eady J’s contra mundum injunction is interesting because it was designed to overcome a specific legal problem which I won’t go into here, but you can find out more about it here.

So we have the situation where the media is in full froth frenzy over super-injunctions which aren’t super at all, and about not being able to publish tittle-tattle stories about actors, sportsmen, etc: ie, the meat-and-two-veg of the down-market sleb and sports obsessed papers (and the Daily Telegraph is increasingly of that ilk, great expenses scandal exposés or no). And in one case, the unedifying sight of a national daily spitting tacks apparently because it has been frustrated to being party to blackmail.

I’ve got to say, I’d rather see the British media in less compromising, less indecent, poses. Perhaps they should listen to Confucius.

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