Super injunctions are not the battleground between free speech and privacy

Super injunctions are not the battleground for free speech as they have been portrayed as being in the mass media. None of the recent cases have been about the media flouting the rules on what is in the public interest to publish.

In actual fact the issues were about information which the courts have ordered to be protected ending up on Wikipedia or Twitter. Recent press coverage does not relate to super-injunctions but anonymised injunctions.

According to Lord Neuberger`s report, the courts are granting super-injunctions less often. According to the report there have been just two super injunctions granted since January 2010. One was set aside on appeal and the other lasted for just seven days.

What is a super-injunction?

A super injunction is a remedy to allow protection while something else is decided or during an interval period. According to Lord Neuberger`s report an interim injunction restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings.

What is an anonymity-order?

This is an order that prohibits the identification of one or more parties to the action, but the existence of the order can be published.

One of the cases where anonymity arises is:

JIH and News Group Newspapers Limited [2011] EWCA.

In this case JIH was a well-known personality. He was said to be in a relationship while he had an affair with another lady. In actual fact he has been alleged to have had affairs in the past. If his identity became known it would be easier for the public to guess what information he wanted to prevent from being disclosed. JIH found out that the most recent alleged affair was going to be published in the SUN so he sought an injunction in August 2010 to stop NGN from publishing the story. JIH`s interim order would keep his identity private, as well as prevent the publication of the alleged affair with the second lady. The parties agreed the order by consent. But Tugendhat J refused the order.

The judge was not concerned that there should be an injunction; he was uncomfortable about the reporting restrictions on the press. The order anonymising JIH went too far for the judge; in light of Article 10 and Article 6 of the European Convention.

JIH appealed the decision to the court of appeal. The court of appeal upheld the appeal.

Amongst other things, the court stated that the issue to be considered was: whether publication of their identity would render any order to protect their private life pointless. There is a balancing act between allowing disclosure of aspects of the person’s private life and allowing the person to remain anonymous. Each case will turn on its facts.

The following principles emerged from the JIH case and Lord Neuberger`s report:

* The general rule is that the names of parties to an action are included in orders and judgments of the court.

* There is no general exception for cases where private matters are in issue and no special treatment should be accorded to public figures or celebrities.

* An order for anonymity or any other order restraining publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

* The principle of open justice requires information to be made public.

* Even where there is a consent order the court may still refuse an anonymity order.

* Any interim order which interferes with open justice and freedom of expression will only last until the return date.

* The court should set out its findings in a publicly available reasoned judgment.

But there is another issue that is emerging from the social web. There is no general obligation to monitor the web. The ubiquity of the web and the ease in which insensitive or unlawful material can be replicated make the Web far more intrusive than traditional media.

The so called Spycatcher principle that binds all third parties who are on notice of the injunction is ineffectual on the web. In other words if one newspaper faces a gagging order all the other newspapers may have to comply but there is nothing stopping members of the public from tweeting the protected information 50,000 times.

The recent controversy has demonstrated the new difficulties with gagging orders as members of the public publish closed material with impunity on Wikipedia; Facebook; Twitter and other Internet sites.

I refer to CTB v New Group Newspapers Limited and Imogen Thomas [2011] EWHC. This case concerned a footballer who had obtained an interim injunction to prevent disclosure of information relating to an alleged relationship with Imogen Thomas. In this case the court upheld the granting of anonymity on two occasions even though CTBs name was in the public domain. There was a story on Twitter, tweeted over 50,000 times, that Ryan Giggs was the alleged sports personality.

Further the rumour was being spread that Ryan Giggs had allegedly sued Twitter over a story about an alleged affair. Mr Hemming, a member of parliament commented that since thousands of people had broken the injunction, then it was no longer practical to have anonymity orders. But the court upheld the injunctions on the basis that publication of identity in the national media was likely to be significantly more intrusive and distressing than the effect of what had been published to date online. That each publication was likely to add, overall, to the distress and embarrassment suffered by CTB and his family.

The court appeared to introduce the element of harassment to uphold privacy and respect for family life.

Mr Justice Tugendhat stated:

“It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed…………………….the claimant and his family need protection from intrusion into their private and family life.”

The current position is that there is no free-standing cause of action for the right to privacy. The law of privacy in the UK has developed on the basis of the requirements of:-

(i) Disclosure of private information in breach of a clear duty of confidence or a duty to respect privacy established on the basis of a contractual or proprietary right or a relationship of confidence; or

(ii) The unjustified disclosure of private information.

In Douglas and another and others (Appellants) v. Hello! Limited and others (Respondents) [2007] UKHL 21 the courts used privacy to protect a contractual relationship.

The overdue introduction of protection from harassment as part of privacy is welcome news.

For more information see: The Law and Social Event at Zigfrid Von Underbelly

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