06 Jun 11 | Uncategorized
Now that the dust is settling after the injunctions affair, here are some things I learned:
1. Ryan Giggs never applied for, nor was he ever granted, a superinjunction.
2. There have been only two new superinjunctions in the past year — one lasted seven days and the other was overturned on appeal.
3. Newspapers which furiously inform their readers that injunctions are against the public interest are remarkably bad at making that case in court (where they have to present actual arguments).
4. The Fred Goodwin injunction never prevented regulators from investigating whether his alleged relationship breached bank rules, nor did it prevent anyone — including newspapers — from complaining to those regulators.
5. You don’t have to rely on the media for explanations of important court judgements; you can normally read them for yourself at a brilliant legal website called www.bailii.org. (Give it a try.)
6. There appear to be 75,000 British Twitter users who are ready, with the right tabloid encouragement, to participate in the “naming and shaming” (or pillorying) of adulterers.
7. When their commercial interest is threatened our tabloid papers forget their traditional enthusiasm for law and order and rail against judges and the legal system like serial lags in Wormwood Scrubs.
8. When it suits them, the tabloids also blithely set aside their usual view that online social networking is an evil invention that causes crime, suicide, binge drinking, obesity, terrorism and cancer.
9. When David Cameron is shouted at by the press he will feebly set up a committee, even when another committee reported on more or less the same thing only a week earlier. (He will also fail to declare an interest, which is that he is a close friend of the chief executive of Rupert Murdoch’s News International.)
10. For every time the law is an ass there is an occasion when the British tabloid press is a slavering pack of hyenas. But with the law you have a right of appeal.
Brian Cathcart teaches journalism at Kingston University London. Follow him on Twitter @BrianCathcart
23 Mar 11 | Uncategorized
The next evolutionary stage of the court injunction has arrived: they now come “hyper” sized apparently.
John Hemming MP has introduced us to the idea — a week after using his parliamentary privilege to reveal the existence of a super injunction involving banker Fred Goodwin. You can read the (long-winded) transcript of the adjournment debate on the Bill of Rights at Westminster Hall in full here.
“I will come to what I call hyper-injunctions. One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out.
“With that, we return to the article nine issue [Bill of Rights] because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know.
“If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.”
Hemming described a case concerning the risk of toxic material in paint for drinking water tanks, in which a “hyper injunction” banned an individual from talking to an MP:
“There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says ‘with the exception of lawyers or legal advisors instructed for the purpose.'”
He continued:
“Parliament is here to protect citizens of the UK, not MPs. The individual who was trussed up by that secret hyper-injunction needs protecting. We all need protecting from water that people are being told to drink without being warned that there are potentially toxins in it. That causes me great concern. This is about protecting people, not about using money and wealth to get legal processes to gag people. There is a way round these issues, but it requires Parliament to stand up for the people and for people’s right to communicate with Members of Parliament.”
Subsequently, Henry Fox discussed the legal issues at play on the Inforrm blog, looking at “the ability of MPs to disclose confidential information in Parliament and the ability of the media to report on these disclosures in order to evade liability for contempt of court”.
“The media controversy that surrounds injunctions is likely to continue and it is thus possible to foresee ‘media-friendly’ MPs attempting to circumvent the secrecy of injunctions on a more regular basis. It may well be that Parliament will have to reconsider some of the measures it considered in 1999 to avoid any interference with the administration of justice.”
As reported on this blog last week, Gill Phillips, the Guardian’s legal editorial director, recently flagged up the main developments in the field. But for any real progress in the super injunction debate, as David Heath concluded in the Westminster Hall debate, “we must wait and see what the Master of Rolls has to say on the subject when he-or, rather, his committee-reports.” Publication is expected around Easter.
16 Mar 11 | Uncategorized
When the Guardian’s director of editorial legal services, Gillian Phillips, spoke at an industry conference 12 months ago, there were no written judgments on privacy injunctions apart from Terry. Since then the field has developed significantly, giving Phillips plenty to draw on, for a talk about the rise of the “super injunction”, at this year’s IBC Legal Defamation & Privacy event.
They may have first entered British public consciousness when Guardian editor Alan Rusbridger drew attention to “so-called super injunctions” in 2009, but the first order Phillips found in their files that “looked super injunctiony-ish” originated in March 2007. Schillings had served a privacy injunction for Britney Spears, against two newspaper groups.
Britney Spears was probably the start of a gradual change in the way these injunctions were obtained, Phillips said. The next significant one was granted in November 2007 for Northern Rock against the Financial Times. But there was still no “super” element, ie. a ban preventing reports of its existence.
May 2008 saw an anonymous set of initials, but as far as Phillips could tell it wasn’t a super injunction because it didn’t prevent mention of the order. However, it was against persons unknown, which became “a bit of a trait” because it meant no one was there to argue the other side.
Phillips’ first anonymous super injunction came about in February 2009, which included prevention of reporting the proceedings. For legal reasons, she couldn’t say much more.
Then came Trafigura, Terry and many more. In her overview, Phillips described the basic principle of open justice.
“Every time the court anonymises or holds something in private, makes an order saying you can’t report it, all those things are derogations from that fundamental principle.
“There is no doubt that those derogations can only be made where they’re strictly necessary. For a long time, the courts seem to have forgotten that and the claimants and those representing them seemed to have forgotten that and these things were effectively going through on a rubber stamping exercise.”
Where next? Phillips flagged up Mr Justice Eady’s comments in a speech in November 2009 in which he foresaw the possible development of a general tort of reputation, where the public interest becomes the overall guiding principle and the fact that something is true does not necessarily amount to a defence [PDF link]. “Alarm bells [are] ringing for all of us,” she added.
Looking to Europe, Max Mosley still awaits the judgment on his application for prior notification. A second Von Hannover case is currently going through the European Court of Human Rights, which raises a number of issues about privacy and the relationship with defamation.
The super injunction committee, formed by the Master of the Rolls, and made up of claimant solicitors and in-house media defendants, as well as members of the judiciary and counsel, is in the process of preparing a Report, Guidance and a draft pro-forma order. The body is still meeting, but is hopeful of producing a final report before Easter.
In the meantime there are three “‘super injunction type” cases due before the court of appeal in the next few months, WER, KGM and WXY, which might provide “a bit more light coming out of the tunnel”.
