A super-injunction toolkit

10 May 2011 by

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:

The legal blogging community is usually diverse in it’s views, but is essentially united on this issue. The general sentiment is that super-injunctions have been hyped up and poorly reported by many in the press, sometimes due to a narrow business agenda rather than the lofty free speech principles so often deployed.
Those who think Tweeters breaking injunctions in the name of free speech are heroes may have some more thinking to do about the impact of breaching privacy injunctions, many of which are nothing to do with celebrities. And those tweeters may even find themselves on the wrong end of a contempt of court prosecution. This is certainly a concern of tweeters: my month-old post on how bloggers and tweeters can avoid contempt proceedings was read nearly 4,000 times yesterday.

Enjoy! Don’t forget you can also read Hugh Tomlinson QC’s excellent three-part post on privacy law (part 1, 2 and 3). And we will see you at 9 or thereabouts.

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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  1. Sabine Kurjo says:

    I still am looking for the defence of “citizen journalists” publishing in the “Public Interest” rather than tweeters spreading words of “prurient interest to the public”.

    I am subjected to two injunctions that cover up emotional cruelty, negligence of a minor and other criminal behaviour.

    Who cares? Certainly not the ocurts and definitely not the criminals!

    But, maybe there is a Court of Public Opinion among the users of social media!?…


  2. Corrupted Mind says:

    Fascinating to watch the (intentional) transmogrification (conflation) of injunctions with non-disclosure requirements, privacy and defamation.

    I’m still trawling through the judgment so its hard to come to a considered view.

    Mosley was always fighting an uphill battle because in essence he argued that his “just satisfaction” (i.e. the £60,000 damages he received) was not in fact worth anything (a terrifically hard sell). Also, the remedy he requested amounted to such an interference in the margin of appreciation that the court would be reluctant to do so unless the writing was on the wall across Europe (the list of states with any kind of prior notification requirement is very very small). This does not mean that the Grand Chamber (if they take this up) won’t have a slightly different view. The average claimant – regardless of what the press might have you think – is not a multimillionaire able to take a privately funded case to Europe. Also, in that light – the £60,000 damages he received seems hardly any recompense at all considering there was a prima facie breach of his privacy.

    The press rather than being celebratory would be wise to realise that this increases the likelihood of Jackson in this area to minimise the cost of litigation. Also, I can see some reforms to the PCC on the horizon – if this is to be something that is pushed out of the courtroom the answer must surely be to where (It would be ironic if the media killed the super-injunction only to create an independent and more powerful regulator).

    @IanJoseph Only one point (or rather observation), both Article 8 and Article 10 are qualified rights as opposed to absolute rights (e.g. Article 3). The freedom of speech absolutists would do well to remember this.

    @Jon There is no such thing as a “privacy” injunction. It is important to remember that “injunctions” are interim remedies obtained in most cases against a named party that is able to challenge the basis on which it is issued. The aim of an injunction is only to place the case in stasis until the substantive matter can be heard. Regrettably, the media never mention any of these facts in any of the articles that they write about them.

  3. Jon D says:

    The tabloids are less more interested in their right to free speech, and more interested in their right to publish trashy articles and photographs in order to sell more papers. If that was the end of it, we’d be in agreement.

    But Privacy injunctions are not merely being used to cover up celebrity indiscretions. Private Eye has been covering the chilling effect of super-injunctions on investigative journalism for some time now. All too often super-injunctions are being used to block stories about the misdemeanours of professional people and organisations acting in a professional capacity. Michael Napier, Trafigua, not to mention the various others that we don’t know about, or can’t talk about.

  4. ObiterJ says:

    Mosley lost the case. A good forecast here Adam.

  5. Melina Padron says:

    The BBC legal commentator seemed to suggest (to be fair to him, before he read the judgment), that this ruling could potentially make bad law. This was because even responsible journalists who do go to the person subject of an article prior to publication may no longer feel the need to do that. Is that likely to occur?

  6. IAN JOSEPHS says:

    Free Speech is Free Speech whatever the situation and wherever you find it !The laws of libel and slander exist to prevent defamation.Nothing however protects parents from neighbours gossip when children confiscated by the State mysteriously disappear. Any attempt to explain what happened and to justify themselves ,and parents are threatened with jail !
    I really do not understand how any intelligent person with an ounce of compassion can justify legal gagging of a mother whose child has been taken for example for “not engaging with professionals” or for” risk of emotional abuse !.”Many in this situation have even been told (wrongly)that they cannot discuss the situation with their immediate family !
    IMPORTANT !! Article 8 of the human rights act was clearly drafted to protect families from State interference,and it is utterly perverse of judges to interpret it instead as a license to gag parents who have been oppressed by the State !Nowhere else in the EU do judges twist this Article 8 designed to protect the family from “interference from public bodies” into an instrument of persecution and gagging to suppress all protest from parents claiming to be wronged by the State
    It is not a question of “rights “for either families or children.The fact is that the judges are trained to study the intention of those who drafted a new law before interpreting it .The intention was to safeguard the family from interference from “public bodies” not to gag any parent that dared to complain about such interference !Certainly not to put the privacy of a newborn baby that could neither speak nor write ,above the right of a mother to speak out and object to her baby’s removal.
    As long as there is no infringement of the official secrets act everyone should be free to say what they like when they like , without judges and social workers rushing to protect their own deplorable conduct by legally gagging everyone in sight ! Sticks and stones etc …..Yes,I know racial abuse is disgusting but making it a criminal offence is an absurdity when applied to petty squabbles between persons of different racial origins.We all have mouths so it makes more sense to answer back than to call for the police !
    Nobody died of emotional abuse ,so as a matter of priority the “SS” should stop wasting money and time in countless court cases pursuing parents who have never harmed their children and obviously love them judging by their desperate attempts to fight the courts and recover them. .Instead they should give frequent and thorough medical examinations to children at risk of repeated physical harm .That would have saved the lives of Baby p and many others from parents and carers who never have fought in the family courts to recover their children ;They would have run a mile from any court !

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