John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
One member of the legislature has now taken matters to a different plane. Where does this leave the general public? It is worth repeating the conclusions of Lord Neuberger in his recent report on super-injunctions. He made clear that the question has simply not been tested by the courts. Whilst the media has “absolute immunity” in respect of republishing Hansard (the Parliamentary transcript) or a publication, it is not as clear whether “a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice“:
Media reporting of Parliamentary proceedings is protected by the Parliamentary Papers
Act 1840, which provides an absolute immunity in respect of civil or criminal proceedings for Hansard and any other publication made by order of Parliament. It also provides an absolute privilege for any individual who publishes a copy of Hansard.
- The 1840 Act also provides a qualified privilege in civil or criminal proceedings for individuals who publish a summary of material published in Hansard.
- Qualified privilege arises where such a summary is published in good faith and without malice. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice.
- Where media reporting of Parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings they may well not attract qualified privilege.
- Where media reporting of Parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies. There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings.
Many media organisations will see Hemming’s actions as licence to break the injunction; The Guardian, BBC and The Sun appear to have done just that (assuming Hemming has named the right footballer). This dam may indeed have broken, making it practically impossible to bring contempt proceedings. But the general public should still be aware, in this case and in those which will undoubtedly arise in future, that the legal position on repeating the name whilst the injunction still stands is still murky.
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