In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
HL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others  NIQB 25 (1 March 2013) – read judgment
In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.
The Writ stated that the Plaintiff, aged 12, had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.
This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.
X v Facebook Ireland Ltd  NIQB 96 (30 November 2012) – read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith. Continue reading →
The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
If you lose your mobile phone with highly confidential and private information on it, all may not be lost. The unscrupulous finder may be prevented from blurting its contents all over the web, even if the identity of that person is unknown to you or the court. It requires considerable input of computer expertise, but it is possible, as this case (cleverly taken in the Technology and Construction Court) illustrates.
The applicant’s mobile phone was reported to the police as stolen after she lost it at university in 2008. It contained digital images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The applicant was alone in the photos and her face was clearly visible.
Invoking the right to privacy under Article 8, and the Protection from Harassment Act 1997, she applied for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images taken from the phone, and an anonymity order under CPR r.39.2(4), which meant that the application, which was heard in private on the basis that publicity would defeat the object of the hearing, would preserve the anonymity of the applicant. Both applications were granted. Continue reading →
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.
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
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:
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news
At the top of the worldwide news agenda is the killing of Osama Bin Laden. In addition to concern over the implications his death will have on the fight against Islamic fundamentalism (click here for some of Adam Wagner’s reflections), the manner in which Bin Laden died has undoubtedly split opinion. Geoffrey Robinson QC strongly condemned the killing when writing in The Independent on Sunday. This is to be contrasted with the assistant editor of the Guardian, Michael White’s opinion, as well as more starkly opposed opinions on the lawfulness of the shooting, an example of which can be found on the Blog of the European Journal of International Law.
The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
When the prime minister criticises judges, he tends to speak from his gut. The prospect of prisoners being given the vote by European judges makes him feel “physically sick”. And now, he is “a little uneasy” about the rise of “a sort of privacy law without Parliament saying so“.
David Cameron’s use of visceral language may reflect what many in the general public (as well as PR man Max Clifford) are feeling about the issue of wide-ranging injunctions granted by courts, seemingly all the time, to prevent salacious details of celebrities’ private lives being revealed. The latest involves a former big brother contestant’s alleged affair with a married Premier League footballer.
Updated | It all started with the reporting of an injunction, supposedly obtained by former Royal Bank of Scotland chief executive, “preventing him being identified as a banker”. A mildly interesting story, made marginally more so by the fact that the injunction had been breached by an MP during a Parliamentary debate.
But there is more to the story. As bloggers Anna Raccoon, Charon QC and Obiter J have reported, on a Parliamentary debate on Thursday the same Liberal Democrat MP, John Hemming, revealed the details of a number of other (what he called) “hyper” injunctions. The common feature was that courts had ordered not only that the parties to litigation were to be prevented from revealing details of their cases to the public, but also to their MPs.
Adakini Ntuli v Howard Donald  EWCA Civ 1276 – Read judgment
Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.
A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.
Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).
We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.
The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.
According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.
Mr Justice Tugendhat decision in the John Terry case
The Judicial Communication Office announcement (including the names of the committee members)
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