Rumours of a flurry of media-gagging super injunctions
Business & entrepreneurs
Legal bulletin | 10 December 2010
It is often said that, aside from a nice cup of tea, the British love nothing more than to knock their heroes. From a speeding fine to a sordid 4am sauna, a tabloid scoop about a celebrity behaving badly is certain to get the country chattering over its morning Frosties. Or, indeed, a nice cup of tea.
Tabloid editors live for the next juicy scoop shaming a household name – be it a pop star, actor or TV personality. But in the weeks and months following the South African World Cup, a scandal starring any of the England players was their ultimate goal. It was inevitable that there would be more cases involving breaches of the players’ privacy. That is the main reason why there is so much talk of super injunctions at the
moment (ie orders which ban reporting of the order’s existence). It is not that our laws have changed, or that sportsmen have replaced training for litigation, or that injunctions have developed super-powers, like Clark Kent stepping into a phone booth.
Rather, more than ever footballers and other sportsmen are having to protect themselves against the slings and arrows of the ferocious British press on the attack on behalf of a nation that finds defeat at a World Cup tough to take.
Where did all these super-injunctions suddenly come from - did they just appear one day like a bolt out of a clear blue sky? Not quite. What happened was that the ordinary non super injunction was being undermined in the media, especially on the internet, by unscrupulous elements trying to publish private information or speculating what the information was and publishing the person’s name. So the super-injunction was evolved by the courts as a necessary response to breaches of an ordinary injunction preventing the person’s name being published or so called ‘jigsaw identification’ occurring. Jigsaw identification is when each newspaper publishes one piece of information about the plaintiff that on its own would not enable the reader to identify them and so is unimpeachable, but when put alongside the other bits of information makes it clear who the plaintiff is. The media know this happens and trade off it.
On a daily basis, we contend with the press trying to publish highly intrusive information about people’s relationships, their sex lives, their medical affairs, their children, their homes, their religious practises and other inherently private material. The level of scurrilous detail included in such stories undermines any pretence of serving the public interest. Plus, journalists are even willing to break the law to obtain their stories. For instance, in 2007 a private investigator and the former royal editor of British tabloid, the News of the World, were jailed for plotting to intercept personal voicemail messages of Prince William and Prince Harry. What was particularly interesting were that the stories themselves were completely anodyne, such as Prince William having a minor knee injury, yet the journalists were still prepared to break the law to obtain them. Three years after the convictions, following the New York Times’ expose on the matter (note it took an American publication to shine a light on the conduct of a British tabloid), the News of the World confirmed that it has suspended a journalist while it investigates new phonehacking claims, despite claims the Royal phone hacking incident was a one off.
Moreover, breaches of confidence often involve elements of blackmail. In those kinds of cases, the press are facilitating blackmail by agreeing to pay blackmailers money for publishing the story and the blackmail victim’s name. No one can doubt there is a real public interest in protecting blackmail victims yet the English press frequently put their commercial interests before the public interest.
It is no surprise therefore, that in England we need robust laws to protect people’s privacy. That said, we have equally strong laws to protect free speech. Unlike in the United States, we regard both rights as being of equal value. Although the media would have you think super injunctions signal the end of free speech in this country, the reality is very different. There are three key myths about super injunctions routinely rehearsed by the media who have an obvious interest in seeing our laws relaxed.
Firstly, it is said super injunctions are stifling stories of real public interest. Yet the overwhelming majority of injunctions are sought to stop salacious details about a person’s private life from being published. There is no public interest in that kind of information. Secondly, it is claimed super injunctions are widespread. In fact, unsurprisingly given how hard they are to obtain, the number granted is very small. Thirdly, it is said one Judge alone is responsible for “introducing a privacy law via the backdoor”. That is demonstrably false. All judges’ rulings are subject to review by the higher courts. Further, different judges have been involved in the different leading privacy cases. In any event, the judges only apply law that has been created by the elected Parliament.
The media are often defendants in such cases or stand behind someone who wants to sell to them for publication someone else’s private information. These defendants are invariably well represented by attorneys and well resourced but more often than not they lose the case. So it is not secret justice – at least not secret from the media who know the terms of the order, what private information cannot be published and even the identity of the plaintiff. The media can and sometimes do apply to the court to vary or discharge the order. But it would defeat the whole purpose of having an enforceable right to a private life if the media could then report details of the injunction. So this could all be sour grapes.
In conclusion, when a super injunction has been ordered, the courts have decided that it is necessary in the interests of justice to do so and that on that occasion rights of privacy should prevail over rights of freedom of expression. It is not correct to say that super injunctions are easy to come by, or that they are widespread or that one judge alone is responsible for their advent. Nor is it correct that freedom of expression on matters of genuine public interest is being curtailed. Free speech is well protected in this country but so are rights of privacy and reputation. And that is how it should be. Something to think about over a nice cup of tea perhaps?
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