Super Injunctions: the IPKat reveals all ...

It is true to say that UK privacy laws have been subjected to a very public outing of late. Indeed, they have very rarely been far from the UK headlines in recent weeks.

Most notably there has been the speculation and furore on Twitter and the rest of the Internet as to the identity of well-known individuals who had taken out injunctions to prevent details of their indiscretions being made public. In the last week alone, this has included speculation of: an alleged affair between two married stars of a popular UK television show; an alleged encounter between a married British actor and escort Helen Wood; an alleged relationship between a married Premier League footballer and former UK Big Brother housemate Imogen Thomas; the alleged visits of a married British actor to various ‘spanking establishments’ to engage in BDSM activities; the alleged sexually harassing conduct of a married British TV personality towards his female members of staff; an alleged relationship between Top Gear’s Jeremy Clarkson and socialite Jemima Khan (which has since been denied by both parties); and an alleged relationship between former England international footballer Alan Shearer and British TV personality Gabby Logan (which has since been denied by both parties).

Even as this Kat has been preparing this post over the weekend, the case concerning the alleged relationship between a married Premier League footballer and Ms Thomas has reached fever pitch. Late last week, it is this Kat's understanding that the footballer sought to orderTwitter to disclose the names of users who may have breached the terms of his privacy entitlement. Next, several celebrities, some with millions of Twitter followers, posted tweets at the weekend which either identified the footballer in connection to the relationship or heavily hinted at his involvement. Then the Sunday Herald in Scotland published a barely concealed picture of the footballer whom it claimed had obtained the injunction. The newspaper printed his face with his eyes blacked out and the word 'censored' written over the top. In an editorial, the Sunday Herald said it was "unsustainable" for newspapers not to be able to print information which is available on the internet.

Against this frenzy, it is almost prophetic then that on Friday the Committee for Super Injunctions should publish its report Super Injunctions, Anonymised Injunctions and Open Justice. The Committee was set up in April 2010 in order to examine well publicised issues of concern to Parliament, the judiciary, the media, and the wider public, following the Trafigura (RJW & SJW v The Guardian newspaper & Person or Persons Unknown) and John Terry cases (Terry v Persons Unknown [2010] EWHC 119). These concerns centred round the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. The Committee was composed of many pre-eminent figures in media law: Chair Lord Neuberger of Abbotsbury (Master of the Rolls and Head of Civil Justice), Desmond Browne QC (5 Raymond Buildings), Rod Christie-Miller (Schillings), Michelle Dyson (Ministry of Justice), Lord Justice Moore-Bick (Deputy Head of Civil Justice), Marcus Partington (Trinity Mirror Plc), Alasdair Pepper (Carter-Ruck), Gillian Phillips (The Guardian), John Sorabji (Barrister) and Mr Justice Michael Tugendhat. Significantly, the Committee did not consider issues of substantive law: as Lord Neuberger stated in the Forward, this would have been ‘inappropriate’. However, the Committee did comprehensively consider the nature of privacy injunctions, procedural issues and data collection.

For those new to the terminology, the Committee defines a super injunction as an interim injunction which 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. Further, an anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

In recent times, there has been considerable speculation as to how many super injunctions have actually been granted. Accordingly, this Kat was interested to learn that since the Terry case in January 2010, as far as the Committee was aware, only two known super injunctions have been granted to protect information said to be private or confidential. They were: Ntuli v Donald [2010] EWCA Civ 1276 (set aside on appeal) and DFT v TFD [2010] EWHC 2335 (QB) (granted for seven days for anti-tipping-off reasons). As far as the Committee was aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping-off, short-term, basis.

The Committee has made several important recommendations which restate well-established principles. These include:

* As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions, the Committee recommended that they could only be granted when they are strictly necessary. They could not be granted so as to become in practice permanent and so should be kept under review by the court.

* In relation to fast-track appeals, the Committee recommended that there was no justification for introducing a fast-track appeals process or a compulsory appeal process for super-injunctions or anonymised injunctions. This was on the basis that it was already possible to seek expedition of appeals from such orders.

* As for the use of specialist judges to hear applications for interim non-disclosure orders (including super-injunctions and anonymised injunctions), the Committee recommended that this would be neither justifiable nor practicable.

* A longstanding privilege of Parliament is the freedom of speech and debate. Any attempt by the courts to go beyond that privilege enshrined in Article 9 of the Bill of Rights 1689 would be unconstitutional. It follows that no super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.

There are, however, a number of proposed changes to the current procedures. These include:

* Practice Guidance should be issued, setting out the procedure to be followed when applying for interim injunctions, with the aim of protecting information said to be private or confidential pending trial. These interim injunctions should in future be referred to as ‘interim non-disclosure orders’. A Draft Guidance is provided in Annex A(1) and (2) to the report.

* The Practice Guidance should be accompanied by a Model Order. A Draft Model Order is provided in Annex B to the report.

* The Ministry of Justice’s Chief Statistician should, with Her Majesty’s Courts and Tribunals Service (HMCTS), consider introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.

* Non-parties should be given advance notice of the application hearing. First, the applicant must give the non-party an ‘Explanatory Note’ (if appropriate, this may be anonymised). A Draft Explanatory Note is provided in Annex A(3) to the report. If the non-party gives an irrevocable undertaking to the court, the applicant must provide that non-party with the hearing papers prior to the hearing. A draft undertaking is provided in Annex A(2) (under Clause 13). This is the most substantial recommendation by the Committee and one which the media has been arguing for many years.

The IPKat thinks that, although this is a thorough and well-thought-out Report, the debate is far from over. Those in favour of privacy will be concerned about the increased costs and delays in the proposal to serve explanatory notes and hearing papers on non-parties as well as the general dilution of their Article 8 right to respect for their private life. Those in favour of free speech will be concerned that the recommendations do not go far enough. The Report did not consider the impact of social media, which in light of events concerning the footballer and his alleged relationship with Ms Thomas is another important element to be considered. Obviously the Court cannot stand on the sidelines while its orders are blatantly disobeyed.

Merpel would like to take this opportunity to make clear that she is not involved in any super injunctions or anonymised injunctions.

Daily Mail editor lambasts Moseley judge, and Moseley responds

For once the IPKat finds himself in the rather strange position of agreeing with Max Moseley. Mr Moseley (who was exposed by the News of the World as enjoying the attentions of a number of German-speaking 'ladies of the night') has spoken out in the Guardian against Paul Dacre's comments regarding privacy. Mr Dacre, the editor of the Daily Mail, gave the opening speech at the Society of Editors' conference. The speech comments on the fallout after the News of the World lost a privacy action, brought by Mr Moseley this summer (reported by the IPKat here) after exposing Mr Moseley's night-time activities and posting a video of one of the events on its website. Mr Dacre accused the judge in that case, Mr Justice Eady, of introducing a privacy law by the backdoor. He began:

But there is one remaining threat to press freedom that I suspect may prove far more dangerous to our industry than all the issues I have just discussed.

'Put to one side the United Nations’ recent attack on Britain’s disgracefully repressive libel laws that have made London the libel capital of the world – something that should be a bitter source of shame for our judicial system.

Concentrate instead on how inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.'

Then, after discussing Moseley's case, and another case:

'Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”.

...

But what is most worrying about Justice Eady’s decisions is that he is ruling that - when it comes to morality - the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral”.

...

What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.

But most worrying is that when it comes to suppressing media freedom, the good Justice Eady is seemingly ubiquitous....

[Dacre then lists the cases in which Mr Justice Eady has sat]

But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.

English Common Law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression. I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.

If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one Judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen.

All this has huge implications for newspapers and, I would argue, for society. Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.

Put another way, if mass-circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice .

The IPKat finds Dacre's speech problematic for a number reasons. To suggest that a judge has an agenda needs to be proven with more rigour than demonstrating that he has delivered a number of consistent judgments - if a judge is applying the law, one would hope for consistency. Who, out of interest, does Dacre suggest is granting Mr Justice Eady this 'virtual monopoly'? Mr Dacre also appears to have not quite grasped the concept of the separation of powers. Yes, judges are unelected, but that's the whole point. He calls the Human Rights Act 'wreteched'. That reduces the importance of an Act which enshrines (or at least adumbrates) fundamental values to a spat between editors of newspapers who want to break 'scandals' and those nasty conservative judges who are spoiling all the fun (and ruining the circulation figures). He accuses the law of being 'amoral', but surely the decision to put privacy and family life over free speech in some cases is a moral one, even if it's one he disagrees with. More fundamentally, judges applying the law, and perhaps particularly IP law, generally doesn't moralise (although there's clearly a moral judgment by Parliament in deciding what the law should be in the first place) or look to closely at the 'quality' of what they're protecting - a consequence of the fact that they're there to apply the law, not to make it up as they go along - make your mind up Mr Dacre; either you want judges to defer to the will of Parliament or you don't - you can't have it both ways. The full text of the speech is available here.