MP has “revealed” footballer’s name, but is it safe to repeat it?
23 May 2011
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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What a lot of jargon over such a simple issue.Free speech should,I believe, always take precedence over privacy when the two are said to conflict.
Article 8 reads:-
1) Everyone has the right for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
Surely this is intended to protect the individual’s private family life from interference by public authority not from newspapers,and certanly not to be used to gag parents when that same public authority interferes by taking away their children !
In the end it is up to the judges to give priority to article 8 or 10 however they feel fit. It is a shame when they use article 8 to gag free speech when they can just as easily give priority to article 10 over 8 unless a public authority is involved.
Fee speech for individuals should in my opinion be inviolable.Words are only words and we should all be free to use them as we think fit providing we do not incite others to violence or breach the official secrets act.
@corrupted mind sorry, I hadn’t made my views plain. I was trying to highlight that IF Parliament wanted to take control of whether there should be a privacy law and wanted some breathing space, then the quick fix would be the adjustment to section 6(3) of the HRA to avoid the need for Courts to be balancing article 10 against article 8. I was setting out how a pause could be achieved, if there was political will to do so.
I’m wholly in favour of what the judiciary are currently doing, and believe wholeheartedly that the media campaign is more about using ‘unelected judges’ (as though elected ones would be somehow better) and ‘human rights’ as a way of whipping up public sympathy for ‘we want to run kiss and tells, because they sell papers, even if the Public Interest is negligible or non-existent’
But I probably should have said that explicitly. I don’t consider that ‘stories that interest the public’ are anything like the same as ‘stories in the public interest’
I think the fact that the woman in this case was represented by silk and didn’t ask on two occasions for the injunction to be lifted, and that News International did not attempt to make any argument in favour of article 8 (and that their counsel sidestepped the argument about whether they were claiming to have ‘clean hands’ about how it got leaked to twitter in the first place) tells you a great deal about whether the media wanted to lift the injunction, or whether they wanted to use it as a cause celebre to get Parliament to make judges stop interfering with their right to gutter journalism.
Regarding Hemmings – either he had seen the injunction itself (in which case whoever handed it to him was breaching it) or he didn’t 100% know the identity of the man in question, in which case he was reckless in naming him. I’m not sure if the Press used him, or he used the Press; but either way I’m not happy about this method of circumventing things.
The parliamentary privilege technically allows MPs to libel businessmen or upstanding citizens providing they confine their comments to Parliament, and the press could then repeat those libels, but most MPs would not contemplate abusing the power in that way.
(I also thought your remarks to John Hirst were bang on. I’m absolutely with him on Parliament needing to follow the Courts on prisoner voting, but disagree on this issue)
Thanks for the clarification.
Regrettably there is no such thing as a temporary fix in Parliament. I would expect that the PM’s adviser is yelling at him that if he opens up the HRA for debate some MPs in his party and in the Lords will want to push for a repeal. So, the govt will hunker down and hope this story quietens down.
@JohnHirst
I find your position a bit ridiculous. In prisoner voting you say the “judges have spoken and the politicians must apply the law”, in super-injunctions “the judges are wrong and the politicians should flout the law” – I thought this would be one matter that you (at least) would be entirely consistent.
@anajinn
Unfortunately, comments like yours illustrate how the newspapers have succeeded in getting everyone in such a muddle about all the issues in play that the only solution (they would welcome) is the abolishing of the remedy altogether. Let’s be clear, there is nothing intrinsically wrong with injunctions restraining certain types of behaviour, in some cases they are appropriate. Also, there is nothing inherently wrong with anonymising parties to litigation – often, most notably in immigration cases, this is done to protect one (or both) parties to the litigation. Lastly, transparency in the family courts – this is a completely separate matter (for an overview see: http://www.spi.ox.ac.uk/fileadmin/documents/pdf/Family_Policy_Briefing_5.pdf). A quick note, in some family proceedings the judge might anonymise the parties or order that one or other individual connected with the case be restrained from disclosing some detail about the case – in some cases the judge may use an injunction in other cases some other order might be used. Regrettably these have all been conflated together but it is important to remember that the purpose of the order(s) are often very different.
Now, with that out of the way straight to Hemming. I don’t want to be accused of gloss here so I’ll quote him precisely:
John Hemming (Birmingham, Yardley) (LD): With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all, and with reports that Giles Coren also faces imprisonment—
Mr Speaker: Order. Let me just say to the hon. Gentleman—although I know that he has already done it—that occasions such as this are for raising the issues of principle involved, not for seeking to flout orders for whatever purpose. If the hon. Gentleman wants to finish his question in an orderly way, he may do so.
John Hemming: The question is, what is the Government’s view on the enforceability of a law that clearly does not have public consent?
The Attorney-General: It is our duty as parliamentarians to uphold the rule of law.
Why is what he said so wrong? Well, if you read Adam’s blog post the answer is clear. This was a question considered by the judge in the case in question, hours earlier. He knew that the case was still before the courts, he also knew that the sun newspaper had been unsuccessful in varying the order. The MR and LCJ just 4 days previously had warned MP’s not to misuse parliamentary privilege and that they should act in “good faith” and he did the exact opposite. This type of action isn’t right and shouldn’t be allowed to stand.
@AndrewPack
I think there is a touch of the “jerking knee” in your solution. Not every privacy case is a bad one. People forget that the ball was set in motion by some journo breaking into a hospital to interview Gordon Kaye after his car accident or the case of taking pictures of Naomi Campbell at her doctors or a picture of JK Rowling’s children as she pushed them to school! For every footballer indiscretion I can name at least ten intrusions perpetrated by the press. The idea of removing entirely the right to a private and family life seems entirely disproportionate. I do agree that a pause needs to occur to allow people to think but getting one will not be easy.
I think I know the case. If this is the case I think it is, the woman was put under the Court of Protection, illegally, and all her real estate assets were stolen (using fraudulent conveyances) until she and her children were thrown into the street by bailiffs. She was a millionairess. Both the woman and the daughter have spoken out and been sent to prison for contempt of court. An injunction was signed by a judge, disallowing the daughter from speaking with her MP. One of the parties is purportedly an arms dealer.
It may be a different case, however, as the solicitors involved in this case are a large international law firm who also tried to gag John Hemming in a defamation suit.
The Mental Health Act and the Mental Capacity Act are also being used to silence victims of economic crime, along with the Vexatious Litigant Act. There is terrible corruption in the courts and there are hundreds, if not thousands of criminals who have law degrees operating as mafia through the legal system.
It says a lot when few MPs are standing beside John Hemming on this issue.
John Hemmings was right to raise the spectre of secret trials and secret jailings…
“A wealthy British financier is seeking to have his sister-in-law secretly jailed in a libel case, in the latest escalation of the controversy over superinjunctions and the internet, the Guardian can disclose.
The financier, who can only be known as “The Hon Mr Zam” claims his sister-in-law is linked to foreign internet postings which reveal the fact that he has obtained an injunction against her in the British high court.
This latest move, orchestrated by the royal solicitors, Farrers, raises the bizarre legal possibility that a woman who cannot be named, can be jailed at the request of her equally anonymous brother-in-law, and that her entire trial for alleged contempt of court can take place in secret”.
http://www.guardian.co.uk/law/2011/may/24/financier-sister-in-law-injunction-breach
John Hemming has knowledge of many cases whereby injunctions have been used to conceal crime by silencing the victims – even to the point of the injunction preventing (a) the victim from speaking to their MP and (b) attempts to place an injunction on John Hemming from speaking about the crimes in parliament. I don’t think that John Hemming is interested in footballers. So many people miss the point. It is about SECRECY IN THE COURTS – ESPECIALLY FAMILY COURTS. John Hemming knows about secret prisoners. Do a search on Google for “John Hemming Secret Prisoners”. You will find parliamentary discussions. Judges should not be placing injunctions for frivolous reasons – such as public celebrities using it to hide affairs so that sponsors will not cut off finances. Although it is not a crime, it is a frivolous use of the courts and public money AND IT ILLUSTRATES how injunctions are being abused. This will lead into the fact that injunctions are being used by criminals with law degrees to silence people from whom they have stolen assets.
I was pondering this yesterday, and it seems to me that the only quick fix is to amend s6(3) of the Human Rights Act, so that when dealing with cases, the Court is not a “public authority” for the purposes of Article 8.
That allows the Court to still determine whether a public authority (such as a Council bringing care proceedings) is infringing a persons article 8 right; but doesn’t impose the duty on the Court to uphold a person’s right to private life when the other party to the litigation is NOT a public authority.
It is, so far as I can tell, that provision of the Act which means that the Court is bound to balance Articles 8 and 10 when dealing with an application for an injunction by a private individual that the press wish to report a story about him. (The News of the World don’t owe a private individual a duty of privacy, but the Court do, when considering the application)
(That provision of the Act was, of course, included by Parliament, and it was immediately apparent to anyone scrutinising the draft legislation that it had the potential to import a duty on the Court to undertake such a balancing act, and therefore create a ‘right to privacy’ against the media IN cases which the Court were dealing with)
That would allow this problem to be stoppered at least until Parliament decides whether to legislate on a right to privacy, or to create a tort of ‘invasion of privacy’ (which they won’t, because it would mean the Government taking on every tabloid newspaper who wants to muck rake for income)
As to John Hemmings, I hadn’t realised that Birmingham Yardley ward was covering Cheshire and Wales these days, but clearly he felt that this issue was so pivotal to his constituents that it needed bringing up. The justification that “X” was considering suing users of Twitter could have been raised by asking the Attorney General to confirm that no prosecutions would be brought for contempt of court unless it could be proved that the alleged contemnor had been served with the injunction. (That would have still allowed for a prosecution should it be proved that some of the Twitter revelations were actually coming from journalists who were well aware of the prohibition on naming him)
I say the ball is very much in the Judges court. The injunction in CBT was challenged and dismissed – before the ink was dry on the order Hemming named the applicant. I don’t think the courts will get a clearer case of “bad faith” or a breach of the sub judice rule. They either bring contempt proceedings or MPs will know they’re bluffing.
The sub judice rule is pretty important, constitutionally speaking. It’s not really on for Parliament to ask the judiciary to administer justice and then have MPs interfere in that process at will, irrespective of the circumstances. Have we really drawn anything from this real-life episode that an anonymous, past or hypothetical example couldn’t have taught us? I suspect not.
Good article on SKY NEWS
http://blogs.news.sky.com/familyaffairs/Post:07342261-63f3-437c-a2e6-afe29eff6b50
David Cameron the Prime Minister has stepped into the farce of the Footballer and the Imogen Thomas , backing Twitter and insulting British Law and the judiciary. Why a Prime Minsister shoiuld feel the need to comment on an adulterous sex act between a footballer and a big brother contestant remains a mystery
Mr Cameron who’s child Godmother is Rachel Whestone the head of Google communications Europe said: “It is rather unsustainable, this situation, where newspapers can’t print something that clearly everybody else is talking about, but there’s a difficulty here because the law is the law and the judges must interpret what the law is.
“What I’ve said in the past is, the danger is that judgments are effectively writing a new law which is what Parliament is meant to do.
“So I think the Government, Parliament has got to take some time out, have a proper look at this, have a think about what we can do, but I’m not sure there is going to be a simple answer.”
Should a footballer ,a woman from Big Brother and adultery be altering the law of privacy and damaging the rule of law in the united kingdom.
Why does anyone care weather they slept together or not, apart from his wife and children that is !
The announcement of a Committee of Both Houses to consider privacy injunctions is welcome. The terms of reference are not yet available and one hopes that they are comprehensive.
http://www.bbc.co.uk/news/uk-politics-13506327
I had some difficulty with Lord Neuberger’s phraseology regarding doubt 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“
On a point of principle, one would have to intend the frustration of a court order at the time of publication of the summary. That would have to be decided on the basis of what the publisher knew at the time of publication. It would not be right to retrospectively construct such intention from the fact that a publication happened to have that effect in the events which actually occurred subsequent to publication.
However that may be (and I hope I explained my point adequately), it is obviously far preferable for writers (including bloggers) to avoid mentioning names. “No names: no pack drill” as they used to say in HM Forces.
It would also seem that it may well be legally safer to avoid providing any link to even a Parliamentary proceeding in which an MP mentions a name subject to an injunction. Thus, a link to even Parliament’s own video of the debate on the “Urgent Question” might pose a legal risk. Now that is worrying. Why should the publisher of such a link have any liability at all when the man who made the statement in the House have no liability?
I also have some difficulty with the words “in good faith and without malice.” Surely, if there is malice then there cannot be good faith? To simply say “in good faith” ought to do the trick ?
All this is a very big dog’s dinner and it might take quite some time to sort it out.
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The ‘celebrity’ injunctors have certainly shown themselves up, but even more so have been the pompous, arrogant bewigged buffoons who believe themselves to be Gods. It is pathetic that so many people act as though they are. Time for more people to cock a snook at them.
‘Your email address will not be published” says ‘1 Crown Office Row’. Mine is enscarth@hotmail.com ‘Publish & be damned’!
Thank goodness we have at least one politician who believes in free speech.What a pity judges don’t give priority to Article 10 (freedom of Expression) over Article 8 (the right to a private FAMILY LIFE) in such cases.
Surely these footballers cannot claim that their mistresses are part of their family life (unless they really are !) ?
Article 8 states that everyone has the right to respect for his private ‘and’ family life his home and correspondence. It is a broader right than just a right to a private family life, so a private sex life with a mistress or whomever would fall within that right.
Mike
You post states that Article 10 outweighs Article 8, or at least it should do – Why?
Why is it your business what these footballers and celebrity’s get up to. People keep moaning that it is because of their role-model status that they should be ousted. Well unless I am mistaken, when the injunctions are in-force, young impressionable children are none the wiser thus they are not bad role-models per-se.
The celebrity or footballer may become a bad role model, however, when the gossiping media break or get the injunction over-turned. The answer is therefore very simple, let them carry on.
I wonder when Parliament will start taking responsibility for what is happening at the moment. Are they in denial about the fact that it is the absence of legislation that is the cause of all of this? How can they possibly blame the judiciary for this?