Part 2 of my blog series on Injunctions, Super-Injunctions and Privacy will focus on the issue of Super-injunctions.  I think it would be prudent to once again state what an Injunction is and what a “super-injunction” is as there is a lot of confusion, especially in the wider mainstream media as to what each is.

An Injunction is an order issued by the Court that prevents a person from doing a particular act.  So that could be naming the victim in criminal proceedings involving children under 16 or the victim in a rape case.  Moving away from criminal law it could be an injunction to prevent an anticipatory breach of contract or to prevent the printing in the media of untruths about a person.

A super-injunction is an injunction that has an additional layer of protection attached to it whereby the media cannot even report that the injunction exists.  It is not one where anonymity has merely been granted, that is an anonymity injunction.  The media are free to report about injunctions that have been granted where one party remains anonymous (provided that they do not break the terms of the injunction such as revealing who the anonymous individual is), they are not free to report that a super-injunction exists.  The wider public should not know that one of these injunctions exists.

In the case of the footballer whose name is widely known but in terms of the injunction is only known as CTB this was not a super-injunction.  Had it been a super-injunction the media would not have been able to report that an injunction had been granted.  The injunction merely prevented the media from revealing the name of the footballer in question.

Having read the judgment of the Court and the reasons why such an injunction was granted I must say that I find no real reason was to why the Injunction should not have been granted.  The narrative of the case suggests that the allegations that appeared in the paper were false and indeed that blackmail (a criminal offence) may have occurred.  The media cannot be allowed to print libellous and defamatory stories about a person.  The case of CTB is not a case where the footballer in question has done something wrong and is now trying to prevent it from coming out in order to protect his reputation, but rather is preventing what appear to be libellous statements about him being printed.

I am in no doubt in my mind that the ability of a person whether they be in the public eye or not to prevent what they deem to be libellous and defamatory information about them from being printed is a good thing.  How would you feel if the papers suddenly printed a story about you that suggests you acted unfaithfully towards your spouse, that in your mind is untrue and the evidence that exists was staged and part of a blackmail plot?  One would imagine you would want to do everything in your power from stopping such a story being printed.  Granted, the chances of that happening to someone outside of the public eye are remote, but it could be demonstrated equally as well with any number of more realistic situations for the average member of society.

The problem I have with super-injunctions is the secrecy of them.  They cannot be open to scrutiny as they are entirely secret.  They go beyond granting anonymity to the Claimant and mean that nobody outside of the parties, Counsel, Solicitors and Judge should know of its existence.  I am sure there are perfectly good reasons for such injunctions to exist in terms of National Security and such like, but when it comes down to protecting the private life of individuals in the public eye I believe that is a step too far.  They prevent, for example, a party to the injunction raising the issue with their elected representatives should they wish representation by their MP or local councillors.

As I have said in part 1 and will explore in more detail in part 3, privacy is essential in our lives.  Each one of us, whether we are in the public eye or not, are entitled to some level of privacy.  The right to a private and family life is important, but you will just have to wait for my thoughts on that.

[Part 1]

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NOTE:  While the name of the footballer in question is in the public domain, the injunction remains in force.  Any comments posted on this blog that name the footballer in the CTB v NEWS GROUP NEWSPAPERS case will either be deleted or redacted.  This blog does not endorse the wilful breaching of court orders.

There has been a lot in the media of late over so called super-injunction.  As is the case with all legal stories the newspapers continually distort the true picture to whip up a frenzy which results in Parliament looking at what is essentially a non-issue.  I am going to attempt to add my voice to the many already out there on the internet.

An injunction, or if you are in Scotland an interdict, is a court order which prevents someone from doing something.  For example, one could seek an injunction against one’s neighbour to prevent them from using their property in a way that prevents one from enjoying one’s own property or to prevent a newspaper from printing untrue stories about oneself.  A super-injunction, and I’m not aware of there being any “super-interdicts” so this would appear to be an English only issue, is a special type of injunction that the wider public are not supposed to know exists – that is what makes it “super”.

The case of CTB v Imogen Thomas is not an example of a super-injunction, but rather the bog standard injunction described above.  It does not have the extra layer of protection that meant its very existence was not supposed to be known by the wider public.  Injunctions cover a wide array of things and could be used to prevent doctors from carrying out a medical procedure to being used as a pre-emptive way to prevent a breach of contract from occurring.  They do not exist, as the media suggest, purely to stop celebrities from having details of their private lives splattered across the pages of a national newspaper (although that is one way they can be, and have been, used).

Injunctions and super-injunctions, particularly relating to celebrities, have sparked a debate on privacy, which has really only been of concern to those working within the English legal system.  When considering the issue of privacy one must turn to look at section 12 of the Human Rights Act 1998.  This places upon the court a clear burden to weight the public interest with the right to free expression.  It has been said often before that what interests the public is not always the same as what is in the public’s interest.  While the public very well may be interested in which celebrity is having an affair with who (and personally I cannot understand why that would be of any interest to anyone other than the parties involved) is it really in their interest to know? What benefit is there to the public knowing that Celebrity A is having an affair with Celebrity B?  It is not for me to attempt to define what “public interest” means; that is either down to the Court or Parliament to do.  However, some examples of what I would consider to be in the public interest would be:

A Government Minister acting corruptly in the exercise of his duties as a Minister – clearly there is benefit to the public of knowing such information and a Government Minister in such a position should not be able to prevent details of their corrupt actions being revealed to the wider public by way of a court order.

An MP acting in breach of the criminal law – I think that most would agree that a Member of Parliament breaking the Criminal Law is in the public interest and that the media should be free to report on this (in a way that does not prejudice any future criminal proceedings)

A company dumping toxic waste in an unsafe and illegal way – again, a clear example of something that would be in the public interest and that should not be able to be kept private by way of a court order preventing publication of details in the media.

To follow those three examples of things that, in my opinion, would be within the public interest some examples of what I believe the public might be interested in, but are not really in the public interest:

Celebrity A and Celebrity B (both single) have been seen in a restaurant having a romantic meal – the public might very well be interested in this, but the media should be able to be prevented from printing the details if Celebrity A, Celebrity B or both want to keep it private.

Celebrity A and Celebrity B (inclusive of politicians) are having an affair –again, the public might very well be interested in the lives of celebrities, but is it really in the public interest to have family disputes publicised in the paper? The effect of affairs can be bad enough, especially for any children involved, without having to see the details of it plastered in every newspaper, on every TV news bulletin and all over the radio for the next six weeks? I don’t think so.

Not every case is that straight forward, but I think it gives a flavour of the types of situations I am thinking of when looking at whether or not something is in the public interest or not.  As I have already said above it’s not my place to try and put a definition on “public interest” – that must fall to Parliament and the Courts to define and interpret.

The Prime Minister has repeatedly said that he does not like the idea of judges making the law and doing Parliament’s job for them.  I would agree that I do not like such a situation, but that is not what we have here (although I do feel it necessary that the Courts can provide an equitable remedy where none exists in law – where the Courts do this though it then falls to Parliament to deal with the gap that has arisen in the law by passing legislation).  We have judges interpreting the Human Rights Act, a piece of primary legislation passed by the United Kingdom Parliament.  It is the job of the Courts to interpret legislation passed by Parliament.

Privacy is an important aspect of human life.  None of us wants our every move or the problems within our family plastered across the news.  Some might argue that by being in the public eye celebrities should expect such things, or that celebrities are quite happy to use the media when it suits them. I do not subscribe to this view.  Each us has a right to decide what we disclose and what we do not disclose to those around us.  Not one of us is without a secret or two.  There should be as little interference with that right as possible and freedom of expression is not an excuse for publishing private details about a person’s personal life that someone has sold to you or that you have discovered by investigating a person.  Only where it is in the public interest should a person’s privacy be placed after freedom of expression.  The media do not have a right to publish what they want about who they want regardless of the wider consequences.  When they decide to print photographs of a person having an affair there are many innocent people who are affected – the innocent partner(s) who have been faithful, any children that  may exist (and that may well include nieces and nephews).

Exactly what is in the public interest to reveal about a celebrity or not is a difficult question.  By the nature of their position in public they are inevitably going to be role models for younger people in society.  So, if I were to be caught speeding by the police in my car it would most probably not be in the public interest for the press to report that.  However, if a premier league footballer is caught speeding then that very well may be in the public interest to report.

However, I can think of only a few situations where it might be in the public interest to report the affair of a high profile public figure.  An example might be where such an affair could compromise the political process (e.g. a Government Minister having an affair with someone who has or is seeking a Government contract – especially where that Government Minister is or may be responsible for awarding said contract).

Generally, I am not in favour of restricting the press.  However, free expression is not an absolute right (and cannot ever be) and is subject to exceptions.  The privacy of a person, whether they are in the public eye or not, where there is no real public benefit to knowing should be respected and in my view there should be a presumption in favour of protecting that persons privacy if they so wish.

I do have concerns about so called “super-injunctions” as in my view no court order should prevent a person from discussing a matter with their elected representatives.   Such injunctions are, thankfully, very rare.  I will go on to explore what super-injunctions and privacy in more detail in blog posts over the coming days.

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NOTE:  While the name of the footballer in question is in the public domain, the injunction remains in force.  Any comments posted on this blog that name the footballer in the CTB v NEWS GROUP NEWSPAPERS case will either be deleted or redacted.  This blog does not endorse the wilful breaching of court orders.