A year from its creation, the Master of the Rolls’ committee looking at “super injunctions” has made its recommendations, following widespread concern about secret and anonymised court orders.
During the course of 12 months the committee of media lawyers and judges examined the principle of open justice and the development and use of interim injunctions, “which restrict the exercise of free speech in order to protect legally enforceable rights to privacy and confidentiality in civil proceedings“.
In a packed press conference at the Royal Courts of Justice on Friday 20 May 2011, the Master of the Rolls, Lord Neuberger and the Lord Chief Justice, Lord Judge, formally released the report which sets out injunction definitions, identifies the lack of clarity for media reporting Parliamentary injunction breaches, and makes a number of procedural recommendations.
The report, which can be downloaded at this link [PDF] does not offer a view on substantive law and policy, which, it says, is a debate for judicial consideration by the courts, or legislative debate by Parliament, nor does it consider procedural issues for the Court of Protection and family proceedings.
Key definitions
- “A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings.”
- “An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.”
- “Since the Terry case, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential. One was set aside on appeal (Ntuli v Donald [2010] EWCA Civ 1276). The other was granted for seven days for anti-tipping-off reasons (DFT v TFD [2010] EWHC 2335 (QB)). As far as the Committee is aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping-off, short-term, basis.”
Key recommendations
- “The MoJ’s Chief Statistician should, with Her Majesty’s Courts and Tribunals Service (HMCTS), examine the feasibility of introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.”
- “Practice Guidance should be issued, setting out the procedure to be followed when applying for interim injunctions, with the aim of protecting information said to be private or confidential pending trial. Such interim injunctions should in future be referred to as ‘interim non-disclosure orders’.”
Lord Judge and Lord Neuberger made statements that can be read, along with a summary of the report, at this link. A Q&A followed; a transcript of some of the answers is laid out below [PDF at this link].
On the number of super injunctions
Lord Neuberger:
[Since 2000] I wouldn’t like to say precisely how many. We’ve concentrated on the more recent period. You will see in our report, in paragraph 2.27, the recent cases since 2010, since the Terry case, I think there have been an acceleration of cases in the latter half of the decade and the 18 cases summarised there are a fair picture of what’s going on. It’s right to emphasise in every one of those cases there is a openly available reasoned judgment explaining the circumstances of the case. …
I can’t comment on individual cases. Injunctions have until early 2010 been granted perhaps a bit too readily. I would hope that we are now in a position where injunctions are granted as frequently as they ought to be and no more frequently … It may be that the effect of our report and its implementation of its recommendations will lead to a sea change. That is really something we’ll have to wait and see.
Lord Judge:
I think the number of injunctions will depend on the number of applications for injunctions – that’s really the long and the short of it. The principles which will govern whether the injunction is to be reported anonymously are the principles we now have. I don’t think the report … can change either by accelerating the number, or by changing the principles that have to be applied. Maybe there will be fewer, maybe there will be more.
On the new procedural recommendations and the openness of hearings
Lord Neuberger:
Certainly I hope one of the main effects of the report is to re-emphasise the importance of freedom of expression … and the importance of hearings taking place as far as possible in public.
One of the new proposals to improve open justice, and to improve the press being informed of what is going on, is a procedure which involves any member of the media who is wanted to be the subject of an injunction … to be informed of the application.
Obviously this is a sensitive matter because the precise newspaper or other arm of the media will not necessarily know all the facts so it’s necessary to have a confidentiality agreement before notice of the injunction application can be given. That will enable members of the media to know in advance about applications.
…Consistent with the principle of open justice and hearings taking place in public, we as a committee and I, as the head of civil justice and the Lord Chief Justice, if I can speak for him, as head of judiciary, are obviously anxious that hearings take place as much as possible in public.
I have said on several occasions in recent cases that hearings in the court of appeal should be in public, if at all possible, on the basis that sensitive information can be referred to by reference to a document, referred to by the advocate to the court and which cannot be identified in the media.
Hearings in first instance, ie., when the application is first made to the judge, are more difficult to be heard in public because often they’re very rushed. The press, let us say a Sunday newspaper, has told someone on the Thursday that the article will be coming out and that person has to rush to his or her lawyers and then the lawyers come to court. It’s a fairly fraught occasion and often it’s difficult to have that hearing in public.
The judge should consider it being public and if it’s possible it will be but often it cannot. When you get to the return date, that is if the judge grants the injunction, the matter will come back for consideration in more detail; then it is often possible for the hearing to be made in public.
On controlling the internet
Lord Neuberger:
It does add to the difficulties of enforcement, there’s no doubt about that. At the moment the law seems to be that even if the information that is the subject matter of the injunction is on the web, that is by no means the same degree of intrusion into privacy as the story being emblazoned on the front page of a national newspaper, which people trust more and has far better circulation than most bloggers and tweeters.
It is a problem, however, and I can well understand the press’ concern – on the one hand the print press is prevented from telling the story when it is available on the web. It is a problem and one we’re going to have to face and deal with.
Lord Judge:
Why are we assuming, and I’m asking a broad social question, that the world of social communications, developing rapidly as it is, can never be brought under control by other technological developments?
We have to find ways do we not to prevent the misuse of modern technology. We have found ways to stop the circulation of pornographic pictures involving children… or at any rate hunt down the people who purvey the material and prosecute them for criminal offences.
Are were really going to say that someone who has a true claim of privacy, perfect well made, which the media and newspapers can’t report, has to be at the mercy of someone using modern technology?
At the moment that may seem to be the case but I am not giving up on the possibility that people who in effect peddle lies about others by using modern technology may one day be brought under control, maybe through damages – very substantial damages – maybe even through injunctions to prevent the peddling of lies.
My starting premise is what effort have we made as a society to think about trying to control the way in which modern communications has proliferated?
…I do think … that there is a difference between a report in a reputable newspaper – and everybody knows about defamation and some people even know about the Press Complaints Commission and some people even know that most newspaper editors do not like to go foul of the Press Complaints Commission notwithstanding some of the articles to the contrary.
But they know about defamation. Everybody knows that if you get it wrong the damages are going to be very substantial. They also know that modern technology is totally out of control. Anybody can put anything on it. I suspect that they would pay much more attention to an article in a newspaper or on the media than they would to anything that anybody can put out on modern technology. I think there’s a significant difference.
Lord Neuberger:
For my part I am very conscious of that fact that the print media and the broadcast media must feel it’s quite unfair that in practice it’s only too easy to stop them … from reporting a story where it’s much more difficult [to stop] the story from being reported on the web. I see that.
I have to say that on one of two of the injunctions I have granted [that] I have subsequently upheld, I have subsequently looked on the web to see what sort of reports are being made of it and they are often very inaccurate indeed. Although only one person actually made the claim there are about 15 different people identified as the possible claimant.
On media involvement
Lord Judge
I think we’ve also slightly got to get away, because this is of great importance to the media, from the idea that all these cases are necessarily cases which involve the media. People seek injunctions to support their privacy in order to protect themselves from blackmail, not of course by the media but by someone else. They seek them to protect their children from possible threats. Again, of course, not by the media. We do have to be slightly careful not to assume this is an entirely media issue. It isn’t.
I’m sorry you’re not going to like this, but most of the time when there’s an injunction made which involves the media you have been present through legal advisors. Often you have not opposed the order, I’m not saying you have consented to it, but often you have not opposed it. You have not applied to have it set aside and you have not appealed.
If it is not appealed, the Court of Appeal can’t look at it and say whether it’s right or wrong. And if it’s not appealed to the Court of Appeal, it certainly can’t go to the Supreme Court for the Supreme Court to consider the issue.
I’m not encouraging you to object every time, you will have legal advice, but what is the conclusion one might draw from this? If you have legal advice and you decide you’re not going to oppose it, it may very well be … that the advice the order made is a perfectly sensible order within the privacy law that we now have.
If you don’t like that law, that is the part of law, where you go to Parliament and say please let it get changed or you appeal so the Court of Appeal can look at it and see whether the law should be developed, or for that matter, the Supreme Court can look at to see whether it should be developed.
But I do start with the premise that many of these laws are not opposed at the time they are made and I wonder why.
On the uncertainty for journalists reporting Parliament
Lord Neuberger:
The law relating to Contempt of Court when it comes to reporting what is said in Parliament is astonishingly unclear. And I would not to like to pontificate about what the law is a) it does appear to be unclear and b) in due course as a judge I might be asked to rule on what it is and therefore I can’t express a view to you.
It is, I think, very unsatisfactory that it is unclear. People should know where they are and whether they are members of the public, constituents, Members of Parliament or indeed peers.
One thing we are very anxious to do is to encourage dialogue between the courts and Parliament – between the judges, the Speaker and the Lord Speaker – to clarify the law and make it sensible.
Historically, the courts and Parliament have mutually respected each other’s territory and have worked very well together, and I have every expectation, and certainly every hope, that that will continue in relation to this particular topic.
Lord Judge:
Before this report was circulated and made public to you the passages in the report that relate to Parliamentary Privilege were sent to the speaker in the House of Commons and the Lord speaker in the House of Lords. The result of that is that, probably with the Master of the Rolls, I shall be speaking with the Speaker and the Lord Speaker about how these issues arise.
There is, though, a point of principle that I think it would be healthy for you in the media to think about – it is of course wonderful if a member of Parliament stands up in Parliament and says something which in effect means an order of the court on anonymity is breached.
But you do need to think, do you not, whether it’s a good idea for our lawmakers, to be in effect to be flouting a court order just because they disagree with the order or for that matter because they disagree with the law of privacy which Parliament has created. It’s a very serious issue in my view.
There has never been any question in any of these orders, not in any single one of them, of the court challenging the sovereignty of Parliament. That’s not the issue. We are following the law as best we understand it at the level of the judiciary where the issues have been canvassed.
But as the Master of the Rolls has just said, our constitutional arrangements have, for centuries, worked on the basis of mutual respect and comity.
On access to justice
Lord Judge:
Rich and powerful sounds very dramatic. The problem with media injunctions, or injunctions affecting the media is that people are rich and powerful because they’re celebrities who have money. That’s the public interest in them. For Mr and Mrs Bloggs down the road who may have the most interesting sexual lives, whose interested in that? Not because they’re not rich and powerful but because they’re not celebrities. They don’t need to come to court because they get on with it the way they wish to.
On media verification
Lord Judge:
There are a number of different facets to the way in which we deal with modern technology but one of them is how to deal with it? That then leads to questions which go to the very heart of this problem, in regards to Twittering out of court. How do we as judges ensure that X is a true media representative?
We know who you [the assembled media] are, we’re familiar with you, but someone comes along and says, “I’m from the Argyll and Orkney Express” but how do we know? Do we really expect to have cards issued? Can you imagine the bureaucracy? I think it would unacceptable to the media. Personally I think it would be unacceptable to the judges. So the media’s position isn’t all that easy either.
With all due respect to the judiciary, I was expecting a big more from the Committee, such as how to reconcile Civil Procedure Rules (CPR) 5.4c & 39 with Articles 6, 8 & 10 of The European Convention.
There are numerous CPR 5.4c orders, made to seal court files, under the guise of Article 8, not accompanied with a superinjunction, yet contrary to Articles 6 & 10. There are orders made for private court hearings as well, exclusive to a superinjunction, also under the guise of Article 8, yet contrary to Articles 6 & 10, as well as CPR 39.
These are secrecy orders consistently being made in The High Court since 2007, often in non-privacy actions and unbelievably, even in libel claims. They are privacy orders through the back door, what I will call the ‘inverted injunction’.
It would have also been helpful to have had some MPs and Lords on the Committee. Just a thought.
As for lies being peddled on the internet, it is clearly not as bad as lies being peddled in the British press. The huge difference is that anyone can open a Twitter or Facebook account to refute the lies. As for getting the British press to publish a right of reply or correction…it is dream on. As for justice in the libel courts…this is also dream on unless one is rich and famous. They usually go together.
This is a huge difference with the American press. Everyone gets a right of reply in America and corrections are promptly made. It is free speech in action. One rarely needs to access the US courts to get lies corrected in the press.
Legal issues are for attorneys, It cannot be easily understand by ordinary people, but still they have rights to comment and share there ideas.
There is a difference between ‘of public interest’ and ‘in the public interest’. I feel that something are published only to make money. Therefore, rather than issuing injunctions, Judges could make an order that all additional revenue, generated by publishing an article and follow up stories, should be donated to a charity. Media would then publish on a need to know basis rather than publish to make money. It is a matter of taking the profit out of publishing other peoples indiscretion. Things published on many websites do not make a profit and therefore have different motives for publishing. this would put old media and new media on the same footing.
The other requirement is that if the media published an error, then they have to give the correction equal prominence in terms of position and size, as the oringinal article.