A super-injunction toolkit
10 May 2011
Updated | If you are looking for something to do whilst waiting for the Mosley privacy judgment from the European Court of Human Rights (scheduled for 9am UK time), and are still finding the super-injunction supernova confusing (who isn’t?), I recommend reading some of the excellent coverage from the legal blogs:
- Carl Gardner’s Head of Legal Blog is “exasperated, frustrated and depressed” by the press coverage and condemns the alleged revelation of the injunctions on Twitter
- Judith Townend on Inforrm asks What now for contemptuous tweeting and media innuendo in the privacy injunction saga? She provides a detailed overview of what may happen next in relation to the alleged breaches.
- David Allen Green uses his New Statesman column to provide some admirably clear thinking on super-injunctions.
- Benjamin Gray on the Garrulous Law Blog asks if the super-injunctions story is essentially made up by the media.
- Charon QC reviews the issue and puts his own view too.
The Mosley ruling and the super-injunction supernova are interconnected. Underlying both is a wider argument about the supposedly judge-made privacy law, and David Allen Green amongst others argues that the press is drumming up a fuss over super-injunctions in order to encourage the government to ignore any further constraints imposed by Strasbourg.
For what it’s worth, my prediction is that Mosley will lose. I would be surprised if Strasbourg takes such a radical step as imposing requirements for the press to notify subjects of scandalous stories before publishing them. The European guidance on the article 8 (right to privacy) and article 10 (freedom of expression) balance is pretty clear: so long as a member state provides an adequate system for suing publishers for libel and defamation and functioning press regulation, this is enough to satisfy article 8 (see the sources quoted by the court in the questions to parties document).
Mosley has a point that in practice there is no way he could have applied for an injunction before the News of the World story was published, but I think the court will say that is a regrettable but necessary pressure point within the free speech / privacy balance, and the UK’s enforcement system is robust enough (don’t forget we are the “libel capital of the world”) to maintain that balance. I may be wrong of course; find out when Rosalind posts the full result later today
Update, 10 May 2011 – Mosley has lost, pretty much on the terms predicted. See Rosalind’s post here).
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