On 10 September 2012, Judith Townend responded to my proposal (published in the Guardian on 6 September 2012 and on Inforrm) that the press not be allowed to report on the existence of specific injunctions, let alone any facts. She suggested that if it were to be implemented we might be going back to square one.
Any legitimate concern about injunctions or their frequency, and about open justice, can be dealt with easily by a periodic release of statistical information on the number of injunctions, the type of injunction, the sex of the claimant and the type of subject matter (whether medical, sex, child etc.). It could also include information such as whether there was a media defendant, whether the public interest was argued, and whether the claimant was a politician, businessperson or some other well-known person.
It isn’t necessary to publish information about specific cases contemporaneously, nor to publish to the world at large at any time the “not so basic” details of a specific case, in the way that the courts have started to do. The Practice Direction can be amended to oblige practitioners to provide the required basic information to a central office in the High Court. Transparency is possible through statistics without needing to draw attention to individuals at the time they obtain the injunction.
In reality the media never made an application to discharge a “super-injunction” – despite the fact that they were fully aware of their terms (having been served with each one). Further, the rhetoric about public interest in reporting is, in fact, hypocritical – as the tabloid media has no interest in reporting the legal issues, only the “tittle tattle”. For example, when the first privacy injunction was dealt with in open court, it only attracted one small paragraph in a single newspaper.
There is no doubt in my mind that the reason the tabloids pushed for the ability to publish private information and to do it contemporaneously was to make injunctions less effective or at worst, ineffective. It was not really because the public at large were actually concerned about super-injunctions. The real question to ask is whether the current regime dissuades individuals from turning to the law to protect their human rights because the risks are far too great. It has clearly had a deterrent effect, as is evidenced by the almost wholesale reduction in applications (not that there were factory levels of injunctions to start with), and, as lots of tabloid commentators are only too pleased to announce to the world at large.
In respect of open justice, there is obviously tension between total transparency on the one hand and an individual’s privacy rights on the other. I repeat, however, that we are only talking about cases where the public interest is not found to outweigh the particular privacy rights. Why should an individual in such a scenario have their rights eroded so severely because of inflated and largely artificial concerns about open justice?
Courts can provide private judgments that are capable of being scrutinised by the media upon the provision of suitable undertakings to the court. If the media feel sufficiently strongly about the judgment, they can apply to the court to rectify the position. They can oppose an injunction application before it happens if they are put on notice, which they must be if it is known that they have a direct interest in the matter. They can even apply to set an injunction aside or to vary it at a return date once they have been given notice. Return dates happen within days after an interim injunction is granted, so I don’t see how this will prejudice a media defendant. There are in fact countless ways in which the media can test or oppose an injunction without eroding or eradicating the individual’s privacy rights until such time as the courts rule in the media’s favour. Besides, they can do it all as the eyes and ears of the public, thereby negating legitimate open-justice concerns.
My view is that if the courts wish to provide practical protection to privacy rights, they will have to lock horns with the tabloids and risk being criticised by them in the process. There is an historic opportunity here to stand up for privacy rights. I can’t think of a better time to do so. Remember, as we have already seen with phone hacking, it can be a slippery slope if we don’t. Today it’s a celebrity whose privacy is invaded for tabloid consumption and tittle-tattle; tomorrow it’s yours and mine. It’s time to take stand.
Judith Townend raises an additional, very interesting issue about how financial transactions in private information should be dealt with in a new system of regulation. This is a complex and difficult question which I would like to deal with in a separate post.
Gideon Benaim is a partner at Michael Simkins LLP and specialises in reputation protection
Thank you very much for taking the time to respond at length.
The practical detail is useful, thank you. As I understand it, you recommend a procedure whereby a member of the media (and public?) could access a private anonymised judgment (private because “the public interest is not found to outweigh the particular privacy rights”) following the provision of suitable undertakings to the court; and the collection of data about cases at a central office in the High Court, which could be released periodically [at the moment statistical returns are completed by the hearing judge and passed to the MoJ stats team – the next report is due end of September].
This then raises specific questions about the form that open justice should take in a digital age: is it necessary to publish information about specific cases contemporaneously? You say not. Last December Edward Thompson asked in the Journal of Media Law (Vol. 3, No. 2, December 2011, pp. 211-236(26)) whether the open justice principle in fact requires cameras to be permitted in the courtroom, a question which could be adapted for the debate here. Does the open justice principle in fact require the publication of basic detail about contemporaneous privacy judgments? If so, what details should be included? The challenge is to find a way of doing it fairly, that does not undermine the purpose of the injunction (interestingly, the Defamation Bill includes the power to order publication of a summary of the judgment [12(1)] – in that case, publication might be in the claimant’s interest).
I’m not attempting to answer the question at this stage, but interested in hearing what people think (see City’s project here: http://bit.ly/openjustice)
Of course, these types of issues are being considered not just in privacy cases: at the Azelle Rodney Inquiry, the chairman had to consider at what point and what type of evidence should be released on the official website. One of the cases the media referred to in its submission was (R (Guardian News and Media Limited) v City of Westminster Magistrates’ Court ([2012] EWCA Civ 420), in which the CA allowed access to documents which had been placed before a judge and referred to in open court.
As someone who has tried to research this topic I found this statement interesting:
How do we know that? Since we don’t even know how many “super-injunctions” (as defined in Neuberger LJ’s report) there were, or the basic details of them, it is difficult to verify that fact at source. Instead, we rely on lawyers, like yourself, or members of the media sharing details which are difficult or impossible to check at the courts. I suspect that most information does come out this way, but it seems a fallible method.
Finally, I look forward to further discussion of the financial transaction issue – I’m curious to see how Lord Justice Leveson addresses it in his report.