In defence of superinjunctions

by Carl Gardner on October 20, 2009

I’m pleased the Guardian defeated Carter-Ruck in the Trafigura, Minton report, superinjunction affair. I don’t know or understand why a superinjunction was granted preventing publication of the fact of the injunction (as opposed to an ordinary injunction merely preventing publication of the Minton report), and I doubt it was right for the judge to grant one. But I’m afraid one or two myths have grown up about this Trafigura business.

First, some people think it was about libel, and shows the need to reform libel law. But no, it wasn’t about libel, it was about legal privilege – and superinjunctions can come in other sorts of proceedings, notably but not only those about privacy. Second, the idea has taken hold that the injunction trespassed on Parliamentary privilege – but no one has ever suggested it restricted what Parliament could do. It was scandalous enough that Carter-Ruck sought to interpret it as restricting Parliamentary reporting by the Guardian, but that is a different thing.

What I’m most afraid of, though, is that this affair will leave people with the idea that superinjunctions are always, and necessarily a bad thing, and that anyone interested in protecting free speech should be against them. I’m as fiercely in favour of free speech as anyone: but very few people believe in absolute free speech, and nor do I. I think there are some limited circumstances in which other important rights can outweigh the right to free expression, and I think superinjunctions have a place as being in some circumstances absolutely essential when nothing else will protect those rights. An example may help – this is developed from one I first thought up when commenting at Harry’s Place.

A newspaper editor much concerned about the collapse of standards in modern morality says on Newsnight that he’s obtained video evidence that a well-known and widely admired backbench MP is secretly a cross-dresser; he plans the next day to publish the video on his paper’s website to expose this simply shocking moral failure. The video was made secretly at the MP’s home by the newspaper’s political editor, who gained the MP’s trust over months by discussing his own pretended transvestism. The MP finally invited the editor to his home after the journalist asked for the MP’s advice and support over dealing with their “shared” secret. The video shows the MP drinking tea and discussing his own cross-dressing, and him and his obviously supportive wife offering moral support to the fibbing journalist in a frock.

The MP has a low profile on any issues related to transvestism, but has made statements in the local press praising the work of a local cross-dressers’ support group. His case is also mentioned in anonymised form in the book Coping with Cross-Dressing by the UK’s leading counsellor in the field, which is the first result if you search for “cross dressing” on Amazon.co.uk. Enough details of the case are given in that book to enable anyone who happens to know one of the three case histories is that of a “well-known and widely admired backbench MP” to narrow the field down to a dozen or so members; and each case history gives some further details of the people’s relationships and private life which reveal no wrongdoing but would simply be very embarrassing if their identities were made public. Most of these of course are not even about the MP at all. The MP consented to having his anonymised case discussed in the book in the hope of helping others.

Immediately following the Newsnight appearance of the moralising editor, there’s much talk on Twitter and on the MSM about the ethics and propriety of the promised exposure, about privacy, about the secret lives of transvestites, etc. etc.. A few bloggers are puzzled by a cryptic remark made by the editor, who they say seemed not to accept unreservedly Jeremy Paxman’s assertion that his paper “would be the first publication to go into print about this man’s cross-dressing”.

Does anyone think that, if the MP succeeds in getting an emergency injunction that night preventing publication of the video and any reference to Coping with Cross-Dressing, the terms of the order should leave the newspaper free to publish a story the next morning, simply naming the MP and saying he obtained an unspecified injunction against them the previous night? Or even saying that an unnamed person had obtained an injunction preventing any reference linking him to an unnamed book?

There may well be too many superinjunctions – there probably are – and one did not seem appropriate from what we know of the Trafigura affair. But don’t let’s run away with the idea that they’re never ever, ever, ever justified. Superinjunctions have a place – and can on rare occasions be essential to protect important rights.

{ 1 comment… read it below or add one }

1 Frank J. Gunn October 27, 2009 at 11:12

I still think in this case, following from my comments on earlier entries of yours, that neither an injunction nor a super-injunction would be warranted.

Firstly let me state that I firmly believe the newspaper in this hypothetical case does NOT have the right to publish, as it is clear there is no legitimate argument for public interest; publication would almost certainly contravene the MP’s right to a private life.

But I believe the correct “tool” for “educating”/disciplining newspaper editors should be applied post-publication.

Continuing your hypothesis, having been found guilty of a premeditated gross intrusion of privacy, also having been forewarned by lawyers representing the MP prior to publication, the newspaper and the editor should be hit with a serious financial penalty consisting of an exemplary portion representing the wilful action and gravity of his/her action; an action that cannot be undone. Of course there could also be a compensatory portion of the award.

I firmly believe that in all but the most serious cases, namely where publication could lead to a serious threat to life, an injunction of any kind would be unwarranted despite the unwanted collateral damage in terms of privacy infringement that could result from such a change to the use of injunctions against the press in the UK.

The risk of an injunction being used to suppress abuses of power I believe outweighs the obvious benefit to society and especially to those wronged by press intrusion that injunctions against the press do bring.

The potential “collateral damage” from continuing the use of injunctions as present would be to the fabric of society: allowing corruption to proceed unchecked, preventing others from learning from one company’s mistakes; possibly even corrupting the political system.

In the context of the risk I perceive, I argue that the lesser evil is the threat that some unscrupulous newspaper or magazine editor may chose to break the law with an unwarranted expose on what should remain a private matter.

I do understand that there is a point of no return. Once in the public domain, always in the public domain. I note your point made on my position – that sizeable exemplary damages should be applied for the most serious and wilful intrusions of privacy – could be construed as hypocritical, since this could lead to an exacerbation of the current position whereby simply the threat of action could lead to self-censorship.

However I counter this with the argument that, provided that one “blocking” issue can be resolved, the use of exemplary damages or even (acting as the devil’s advocate) criminal penalties (with a risk of return to the debates surrounding the criminal libel act – although the debate should be focussed on criminal intrusion of privacy, not libel) is in my view the correct tool to curb what I see as the greed of some newspaper editors.

I say greed because I believe in nearly all recent cases of press intrusion the responsible editor has made a cool and calculated decision that to print and be damned would make more money than not to print.

So what I propose is a change in the application of the law to tip the balance of this equation, whilst preserving injunction by the courts as the last line of defence to be used only when genuinely grave consequences could result from publication, since the right to life generally usurps most other rights granted under the ECHR.

The protocol I propose would allow an editor who is absolutely convinced of the public interest to print without fear of being held in contempt. This is the safeguard against misuse of the “libel” (yes I did read your piece – hence the use of quotes!) laws.

And the one “blocking” issue I see is the cost of defence. Something has to be done to redress the balance; to preserve the concept of innocent until proven guilty.

Whether this be a system of pre-trial hearings perhaps coupled with legal aid for defence of the right to free expression, or whether the plaintiff should be forced to place in escrow the likely full cost of the trial in order to limit action (although of course this will simply preserve action for those who can afford to take it) who knows, but as you rightly pointed out my position would be somewhat hypocritical if the end result was another tightening of the noose preventing press freedom!

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