Monday 25 April 2011

Superinjunctions, and how we should control them

As much as I love the Guardian, there are a few issues on which I feel the editors are guilty of gross exaggeration and blindness to any point of view but their own. This of course is a problem that is prevalent across the political spectrum of media outlets, and the Guardian is by no means the worst; but as a paper whose alignment is fairly similar to my own, and which holds aspirations to journalistic integrity, as a faithful reader I feel their hyperbole threshold really ought to be lower. Amongst these topics are anything to do with China, for example (I shall most certainly be returning to this at some point, watch this space). Another of these relates to the so-called ‘superinjunctions’ which, we are told, are becoming more and more frequent. At least 12 this year served to the Guardian alone, apparently. 


First, a little definition (a shout-out here to my tutors at Paris II; doing English Law alone would never have made me so aware of the importance of definitions). This has been explained over and over both in the Guardian itself and on various blogs and sites, but the injunctions that send most of the British press into frenzies of indignity are not actually superinjunctions, merely normal interim injunctions restricting publication of the details of a case before it comes to trial. These injunctions have been around since time immemorial. All they do is say that the press is not allowed to publish the details of a case before the court in case publication unduly affects the outcome of the case in one way or another. This is clearly a very important tool for courts to ensure that due process is observed, and that justice is served.  
Unremarkable in themselves, these ordinary injunctions have been thrown into the media spotlight by the development that instead of being brought on the grounds of possibly affecting the outcome of a case, they are now increasingly brought on the grounds of privacy. Privacy as an overarching topic cannot be dealt with here in a satisfactory manner; it suffices, for our purposes, to say that the so-called ‘tort of privacy’ is a fairly recent evolution in the common law, based on an old English action of breach of confidence and the more recent influence of the European Convention on Human Rights, transposed into British legislation in the form of the Human Rights Act. This, of course, pits the applicants for such injunctions - usually public figures wishing to keep their personal affairs private - against the formidable might of the British press. This is why we have been hearing so much outrage over them in the past year or so: if the media can’t rage about the private lives of celebrities, it will do the next best thing and rage about being restricted from doing so. I shall come back to this point in a later post.
The so-called ‘superinjunction’ is, procedurally, identical to normal interim injunctions restricting publication. The only difference is that the superinjunction restricts publication not only details of the applicant’s case, but also the fact that the case has been brought, and the existence or terms of the injunction itself. In other words, the case will be conducted in what an editorial in the Guardian calls “secret hearings”. 
The superinjunction, then, is an extension of the ordinary injunction. Since it imposes a much stronger restriction, one would expect the conditions under which judges grant one to be much more constrained. Lord Neuberger MR is about to publish a report with guidelines to judges on their use; I shall set out here what, in my view, the threshold ought to be. 
It would probably be useful at this point to explain briefly the relevant ECHR articles: the two competing interests here are the rights to freedom of speech, guaranteed in Article 10, and to a private life, provided for in Article 8. 
The test for normal interim injunctions restricting publication on the grounds of privacy
This is fairly well-established by case law. I shall not quote the entire backlog, but in the case of ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 regarding the “male working in the entertainment industry” decided just the other week (and rousing a flurry of speculation in the process), Ward LJ defines the test in six stages which can broadly be summed up thus:
  1. Is there a reasonable expectation of privacy so as to engage Article 8 of the ECHR?
  2. This is judged by “whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive”.
  3. There is no protection if the information is already in the public domain.
  4. The judge must balance the competing interests of Articles 8 and 10. This balance should be based on (per Lord Steyn in Re S [2005] 1 AC 593):
    1. The comparative importance of the competing rights in the individual case
    2. The justifications for interfering with each right
    3. The proportionality test
  5. The decisive factor should be the contribution that publication would make to a “debate of general public interest” [emphasis added] (Von Hannover v Germany (2004) 40 EHRR 1). 
  6. The injunction should only be granted if the applicant is more likely than not to obtain a full injunction following a trial.
This, seems to me, to be a perfectly reasonable test where the only interests involved are those of the applicant and those of the media organ. Last week’s case turned on the lack of general public interest, and also on the Convention rights of any children involved, and Ward LJ held that the best interests of the children could “tip the balance” into granting an injunction. Again, this seems fair: why should the lives of innocent children, already disrupted by familial difficulties, be traumatised further by national attention and scrutiny? 
The proposal for a higher threshold for superinjunctions
Lord Neuberger said last week in a lecture of superinjunctions: 
“Such injunctions can obviously only be granted where there is information which is capable of being legally protected. Super injunctions like any other injunction can only be granted in support of substantive legal rights. They do not determine those rights. They simply exist, as all interim injunctions do, to ensure that the proper administration of justice is not frustrated pending trial and final judgment.”
As has already been mentioned, there is a report coming out “hopefully before the end of April” including guidelines on the use of superinjunctions. There is no doubt that, despite the hysteria in some parts of the media very dear to me, the existence of superinjunctions is justified in certain cases. However, these should be much more rigorous than the tests set out for the application of ordinary interim injunctions. Remember, the superinjunction can be brought to restrain publication on any ground, not just that of privacy; traditionally they were used, for example, to protect trade secrets, or in family cases. 
The reason their use should be subject to a substantially higher threshold is this: as Lord Steyn said in Re S, the justification for interfering with each right where there are competing ones must be considered; I would add that there is a matter of degree at play: the more an injunction would interfere with a right, the more crucial the justification must be. The restriction of the Article 10 right to freedom of expression to such a degree that even the very existence of an injunction cannot be published requires more than a vague “balance of interests” or probabilities of obtaining an injunction after trial; in order to prevent a slide into their overuse, superinjunctions ought only to be granted in specific, defined cases judged by the ‘but for’ test. Some suggestions for these might be:
  • Where the life or safety of the applicant would be endangered but for the superinjunction
  • Where national security would be endangered but for the superinjunction
  • In the case of minors or other vulnerable parties
  • Where the purpose of the injunction restraining publication would be defeated but for the superinjunction
Now, I am usually much more a fan of reasoning from general conditions and principles rather than  categorising, but the restriction of the Article 8 right in the case of the superinjunction justifies these measures.
Should probably end here for now. I will write more on privacy in general, and the media’s interest in changing judicial policy on issuing any type of injunction restraining publication. Take care, and happy Easter to you all. 

2 comments:

  1. As an aside, not all 'super-injunctions' are interim injunctions. In OPQ v BJM* Eady J has just granted a final injunction Contra Mundum, neatly resolving the dilemma that was caused by the fact that 'super-injunctions' lose their Spycatcher power when they become final injunctions.
    *[2011] EWHC 1059 (QB)

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  2. I was not aware of that, thank you. I should probably research more on what happens post-trial in these cases.

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