A super-injunction toolkit

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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