Super, hyper and possibly even-larger-still injunctions

Published in Halsbury's Law Exchange here.

It used to be said that there was no such thing as bad publicity. One would have thought that in the present day of much looser public morals - and an even looser definition of the word “celebrity” - that saying would be rather more appropriate than ever.

Yet an increasing number of public figures are now spending large sums of money using up the precious public resource of the courts in order to suppress details of their private lives and misadventures. Over the past decade we have seen the growth of an actionable right to privacy, and the ability to protect that right by ever more draconian injunctions. Both developments have been highly controversial, to the point where the Master of the Rolls has set up a committee to review the use of media injunctions. Its report is due shortly.

The modern legal right to privacy is grounded in art 8 of the European Convention on Human Rights (ECHR). In terms of press revelations it comes squarely into conflict with the right to freedom of expression as guaranteed by art 10. The ECHR has made clear that where both articles are engaged they are to be treated as of equal weight, and it is therefore necessary to balance them according to the facts of each case. Relevant factors in that exercise include whether the act in respect of which privacy is sought is a matter of public interest, and whether any innocent people (such as an applicant’s children) will be harmed by its disclosure.

One additional factor in the UK is s 12 of the Human Rights Act 1998, which provides for a heightened importance of freedom of expression. That suggests that arts 8 and 10 should not in fact be of equal priority, but rather in favour of the latter.

The first significant modern privacy case was that of the supermodel Naomi Campbell, who fought a high profile action against a newspaper over whether the latter had breached her rights by publishing pictures and stories about her visiting a drug treatment centre (Campbell v MGN Ltd [2005] 4 All ER 793). In her favour was the point that the clinic had provided her with a form of medical treatment, something quintessentially confidential. On the other hand, taking drugs involves the commission of a criminal offence, which one might have thought should weigh against any right to privacy on the facts of the particular case.

Campbell has been followed down the legal catwalk by a string of other “celebrities” including Max Mosley, who famously sought redress after pictures of a lurid encounter with prostitutes were published without his consent. Ribald details notwithstanding, it was a private occasion and most people would object to someone filming their sexual encounters without their knowledge or consent.

There are accordingly occasions in which a right to privacy (over and above traditionally confidential information such as commercial secrets, medical details and the like) is justifiable in principle, despite the erosion of free speech that it necessarily entails. It has to follow that interlocutory remedies to preserve that right are also justifiable – the right to privacy would be meaningless if anyone was free to print something prior to trial.

Moreover, there are also circumstances in which justice demands absolute confidentiality, such as where it concerns an ongoing criminal investigation, or issues of national security, or legitimate protection of commercial interests. This post is not concerned with any of those three situations but rather the developing notion of privacy for one’s private life.

In that respect there is cause for disquiet. Can it be right that footballers are able to clog up the courts by trying to suppress the fact that in dressing room parlance they have been indulging in one too many away games? The right to freedom of expression and the principle of open justice are fundamental to an open and democratic society. They should not lightly be interfered with. While the extra marital affairs of celebrities might (and should) be a matter of supreme indifference to anyone not personally involved, it does not follow that the law should intervene to silence the press. At the least the burden should be firmly on the applicant to show why the state should intervene on his or her (usually his) behalf.

In JIH v News Group Newspapers Ltd [2011] 2 All ER 324, the Court of Appeal set out principles to be applied in such cases. These are eminently sensible and need not be set out here again. I would however endorse the per curiam statement of the court that a lot of the concerns about injunctions from the point of view of open justice would be addressed if courts complied with the principle that judgments and orders should be made publicly available, and those judgments and orders should disclose as much as possible about the case.

As to the fact of making injunctions at all, however, I would offer the following observations.

First, there should rarely be a right to silence details of personal immorality, still less criminal activity such as drug taking. Scarce public resources such as the courts ought not to be expended on a wealthy few hushing up their own moral misdemeanors, which are the result of their freely chosen actions. Freedom of speech needs jealous guarding, and there will be casualties.

Injunctions suppressing sexual misadventures would not likely occur in the US, with its robust tradition of free speech under the First Amendment. If President Clinton could not claim privacy to keep his extra-marital activities out of the press, it would seem unlikely anyone else would stand much of a chance.

The argument in favour of freedom of speech is all the stronger where the conduct in question involves a breach of trust, such as an employment relationship (as indeed in Clinton’s case). Certainly there is an argument that children of the parties should be protected, but that may not be decisive; the state does not guarantee parental infallibility in all respects.

The second point concerns Parliamentary privilege. Under art 9 of the 1689 Bill of Rights, free speech in Parliament is absolute. That priceless jewel in our Constitutional crown exists as the ultimate protection of Parliamentary supremacy and, of course, democracy itself. Recently such protection was invoked by an MP in order to reveal the fact that Fred Goodwin, former head of RBS, had obtained an injunction which went as far as to prevent Goodwin from being identified as a “banker”. (Various wits on the internet promptly observed that Goodwin’s performance as such did not merit the description in the first place). It has been suggested that a “hyper injunction” would preclude a member of public telling an MP about the existence of such injunctions in the future, lest the MP then render the injunction worthless by disclosing it under the protection of art 9.

If that is the case (rather than media misreporting) it would seem clearly wrong. The right to discuss something with an MP in the strictest confidence should be unfettered. If the MP then wrongly discloses anything outside Parliament then, rightly, he or she will face the full legal consequences. Within either House, however, the protection of art 9 is absolute and it is for Parliament itself – and the electorate – to censure an MP who abuses it. The member of the public who disclosed the information should be able to claim the protection of privilege, akin to legal privilege which would apply if he or she had discussed something with a solicitor. Parliamentary Privilege is not confined to actual words spoken in the Houses, but extends to actions that advance or are ancillary to proceedings in the Houses (see eg Pepper v Hart [1993] 1 All ER 42 at 67–68).

The final point is one which applies to many of the classic debates concerning free speech. To put it bluntly, all of the above discussion may be rendered largely irrelevant by something out of the hands of the courts and Parliament. I refer of course to the internet. The English courts can issue contra mundum injunctions, but the reality is that since the law (for present purposes) has no reach beyond these shores, it has become – for better or for worse – very much harder indeed to suppress information than ever before. Someone outside the jurisdiction might publish something on the internet that is then easily accessible to British citizens. It would still be an offence for a British citizen to download and disseminate the information, but readers will need no elaboration of the reality of such a situation.

The only recourse for the government in those circumstances would be to try and censor internet search engines, in the manner of a few largely non-admirable totalitarian regimes elsewhere. I trust such a step is not likely to occur in this country.