Master of the Rolls’ Privacy Injunction Guidance – Amber Melville-Brown

One has to think hard now to remember the media furore over so called ‘super injunctions’. It has been eclipsed by the other media-focused story of the day, the demise of the News of the World amid the phone hacking affair. But before the fall of what had been the best read newspaper in the English speaking world, journalists within its ranks would have been as scathing of the super injunction, or the plain old privacy injunction, as was the rest of Fleet Street.  Its reporters would have been amongst the ranks of the Fourth Estate bemoaning the chilling effect of the injunction on free speech; glorying in its perceived defeat on Twitter over the Ryan Giggs affair; and delighting in the earlier failure of Max Mosley in Europe to secure an advance notice requirement for privacy invading stories.  But the phone hacking scandal has caused those in the media who championed their right to access the private and confidential information of public figures and private persons, to think again. Reporters eager for a good story – perhaps even a public interest story – might condemn illegal activity to get it, but will have regretted that the media spotlight has been so powerfully turned on the media itself, bringing it into such disrepute.

The Guidance

With the pendulum continually swinging in the battle between free speech and privacy, fresh from phone hacking gloom comes the new guidance on privacy injunctions issued by the Master of the Rolls; this is perhaps seen as somewhat of a swing back into the sunlight for the media. And especially so given its emphasis on pre notification, not by the media to the claimant as Max Mosley had recently argued in Strasbourg, but ironically, by the applicant to the media.

Max Mosley, we will recall, had been caught on camera with his trousers down in what the court decided was a fairly clear and unjustifiable invasion of his privacy. But once his private peccadilloes had been spread for the world to see across the pages of the now deceased News of the World, his only remedy was damages. Some remedy, he argued. He asked the European Court of Human Rights to find the UK government not properly to be protecting his Article 8 rights by a failure to provide that the media should notify a subject, in advance, if they intended to publish material that would intrude on his Article 8 territory. The court turned him down.

The media, needless to say, were delighted at his failure. But to put an even broader smile on the faces of editors up and down the land, the requirement for pre-notification has been turned on its head with the applicant for a privacy injunction left in no uncertain doubt that it is he who must now notify the media organization of his intention to pop down to court for an injunction.

What’s more, the notice is not solely intended for the respondent. Importantly, the Practice Guidance notes require that an applicant must notify not only the respondent to the proceedings but also any non-parties who will be served with the order. So a claimant can’t hot foot it to court to restrain a newspaper without tipping them the wink that they are going. And they can’t simply notify one news organization – perhaps one they consider weak and unlikely to defend the application – and then serve the resultant order along the rest of Fleet Street like injunctive confetti. If an organization is to be served with any order, they must be told of any application to get one. Simple as that.

Or is it? While in respect of media organizations ‘only rarely will there be compelling reasons why advance notification is or was not possible on the grounds of either urgency or secrecy’, different considerations might apply, the guidance recognizes, to internet-based organizations, tweeters or bloggers. Just what those different considerations might be however, is left to be decided another day. One foresees that some considerable case law may ensue in working out the exact parameters of this unclear / flexible guidance.

Justice seen is justice done

We all know that the general principle in court proceedings is one of open justice. Justice seen is justice done. But in some, usually exceptional cases, seeing the handing down of justice would be to do no justice at all. If a privacy claimant must fight his way past a barrage of snappers into a courtroom with a press bench full of hacks with pencils poised to report all they hear, then that may be a clear slap in the face of Madam Justice.

The guidance rightly provides that any derogation from the principle of open justice should be granted in ‘exceptional circumstances’ and where it is ‘strictly necessary to secure the proper administration of justice’. It makes clear that because privacy orders impact on the public’s Article 10 rights, those that would contain anonymity provisions or constitute ‘super injunctions’ cannot simply be sewn up between amicable parties in a consent order. The Article 10 rights of the public cannot be waived or given up by the claimant or the media, or the two in cahoots.

Hype or right?

The super-injunction that the media so vilifies – preventing as it does the publication even of its own existence – and which has been the catalyst for this guidance is in fact a rare creature. More frequently exiting the Royal Courts of Justice has been the anonymised injunction, where the identity of one or both of the parties but not the existence of the order is kept confidential. The more popular beast, albeit that the courts are not overrun with them, is the injunction that can be reported, which identifies the parties, but which prevents the publication of certain information until trial; the details of an intimate relationship for example, or commercially sensitive data.

Contrary to what the media may have us believe privacy injunctions are not handed out by the judiciary like sweeties but after an analysis of the respective rights at play. They will only be granted where the courts are satisfied that the claimant is more likely than not to succeed at trial in showing that there is no public interest or other justification for the publication of the private information in question. Even when they are granted the judiciary is concerned actively to monitor their existence and will only rarely allow them to continue for extended periods, bringing the parties back into court for reassessment and final determination.

But that’s hardly a great news story for the media. Far better is that ‘super injunctions’ are depriving the public of their right of access to public interest information (AKA a celebrity’s cellulite or the latest footballer’s fumble) and that the mighty media watchdog is sat shivering in his kennel with the cold wind of the privacy injunction forever chilling his free speech.

Without the hysteria and hyperbole what we need is a fair balance. We are social creatures; we are interested in each other; and the media plays a valuable role in serving that interest. But as individuals trying to survive in our cramped society, we need to be able to retreat into a private place from time to time. It is that balance that the courts will consider when hearing an application for a privacy injunction. And it is that balance that the Master of the Rolls has concluded in his review is in fact, generally being balanced fairly between the parties.

Against the backdrop of two distinct voices on either side of the divide, an authoritative account of the true extent of privacy injunctions obtained cannot be a bad thing. It will serve as a clear and public confirmation of how our respective rights are actually being balanced.

Of additional assistance may be the draft model orders, a precedent of the required explanatory notes for those being put on notice of the injunction application and a draft model order all included in the guidance notes. While helpful though, they are unlikely to send lawyers sobbing into the local boozer at the thought of lost revenue as litigants opt for the DIY injunction. The issues are still sufficiently complex and the law still in such a state of flux and development to keep us busy.

Plain English has inveigled its way into the otherwise comfortably archaic language loved by specialists. A non disclosure order is an order not to disclose. It says what it does on the tin. But whether this new terminology is likely to catch on, remains to be seen. It is not as headline grabbing as the ‘gagging order’; it is not as pregnant with intrigue and suspicion as the ‘super injunction’. It is the Reginald Dwight to Elton John; and Reginald was hardly likely to have made it big, now was he?

 Amber Melville-Brown, partner, Media and Reputation Management team, Withers LLP; additional research by Patrick Bidder, trainee solicitor