Hemming does his worst

by Carl Gardner on May 23, 2011

As I think readers will surely know by now, John Hemming MP used Parliamentary privilege today to name the footballer whose anonymity is protected in this privacy case by an injunction, which the High Court decided earlier today to maintain in force.

Since then, first Sky News and now the BBC have named the footballer on air. They’re clearly making a judgement that although the law is unclear on whether it’s legally safe to report what’s said in Parliament that flouts a court order, the risk of any successful legal action against them for contempt of court is so low that it’s well worth taking the residual legal risk.

As I write at nearly 7pm, I’ve read on Twitter that the injunction has still not been discharged, after a second attempt today by lawyers for The Sun – which surprises me. I imagined the hour or so after John Hemming’s outburst had finished it: once SkyNews and then the BBC decided to name the footballer, I assumed the court would find there’s nothing left to enforce. But the order stands, and I’ll wait for the it to be discharged before I name him.

There’s nothing wrong with the privacy law Parliament enacted in the Human Rights Act 1998, and which the judges are loyally applying – except that redtop newspapers want to breach and destroy it in their own commercial interests, and that many internet users have allowed themselves to be persuaded to flout it by a one-sided, self-serving and ill-informed media onslaught. I find it astonishing that, against the background of the News of The World phone hacking scandal, so many people swallow the claim that it’s judges who are out of control. As Alastair Campbell has implied in what he’s tweeted, what’s happened today is no victory for free speech, but for the worst of British journalism.

Just as important as privacy law, though, is the question of Parliamentary privilege and John Hemming’s conduct today. In response to John Whittingdale’s urgent question about injunctions, the Attorney General Dominic Grieve was right to remind MPs of the importance of the rule of law. Hemming, though, was having none of that, deliberately naming the footballer to the clear disapproval of other MPs and of the Speaker, who told him that the purpose of privilege was not simply to flout the law.

In doing so, Hemming has set himself up as the ultimate judge in this case, which I don’t think even involves one of his constituents. Without knowing the full facts, he has effectively given judgment in favour of the tabloid press – just because he feels like it. His sheer arrogance is breathtaking. Hemming plainly abused of Parliamentary privilege today, as he has before as part of his campaign against the family courts. Anyone who thinks the rule of law is important should oppose his antics.

What’s depressing is that many on the internet will now lionise Hemming, who’ll now no doubt gain a wider audience for his onslaught against social workers and family judges. A series of far better contributions to the debate on privacy today was made by a series of far better MPs – Chuka Umunna, Matthew Offord, Gisela Stuart, Tom Watson, John Whittingdale and the Attorney himself. But people will remember the worst.

{ 149 comments… read them below or add one }

1 Law Think May 23, 2011 at 19:30

Great piece Carl, this is so true: “I find it astonishing that, against the background of the News of The World phone hacking scandal, so many people swallow the claim that it’s judges who are out of control.”

Hemming’s explanation for his actions on Sky News after the incident was worse than what he actually said in Parliament.

2 timbk May 23, 2011 at 19:35

Hemming may, or may not be a total **** head, but when the entire planet, outside the boundary of the UK knows the identity of the Super-injunctees, it does make the Super-injunctions, and the attempts to enforce them look a tad farcical.

3 James Medhurst May 23, 2011 at 19:41

Actually, it may surprise you but I think that the original injunction against Imogen Thomas and the Sun should remain. Although the anonymity part of it is pointless, there is an important distinction (which has been lost in this debate) between revealing the fact of an affair and the salacious details of it. Even if they leak out as well, it is right that Imogen Thomas should not benefit financially from it. Overall, I think this is a realistic place to draw the line in most cases.

Funnily enough, I was thinking about the phone hacking scandal when reading the latest judgment in the TSE case earlier today. In that case, both of the parties to the affair support the injunction and it is mysterious where the newspaper got its information from. Sadly, the judge spoils his otherwise sound reasoning by getting himself involved in the public debate. He suggests that privacy is a feminist cause by equating the filming of topless celebrities using a telephoto lens with reporting adultery – an unedifying comparison, and one that misses the point about what an invasion of privacy is. For me there has to be an element of intrusion into personal space.

I do agree that John Hemming is being highly irresponsible though.

4 James Firth May 23, 2011 at 19:42

I find it breathtaking arrogance that anyone can question the right to report proceedings in parliament. MPs are, at least, elected. Considering the judges, parliament and every other body acts in the name of the people, for the people, how else are judges to be held to account when they so clearly have misunderstood the public mood?

I’m a privacy campaigner and a privacy realist – I hate to see the intrusion we’re seeing, but what are the realistic options? What’s the lesser evil – a free press or those in the public eye facing public critique of their lives?

I’ve taken a close look at other countries with strong privacy laws and I don’t like what I see. I don’t like being told by security in Rome that I cannot take any picture with a tour guide in shot. This in a country with a Transparency International Corruption Perceptions Index of 3.9 in 2010. Less than Rwanda!

Privacy is important, but that doesn’t mean we can’t lose sight of other important rights and safeguards. And it doesn’t necessarily stack up that celebrities who have the power of influence over the public – ie the power to persuade us to buy one brand of football boots, razor or soft drink over the other – should not have their moral conduct scrutinised by the public as part of this bond of trust.

So much more on my blog, starting here, on the right to report on parliament:
http://www.slightlyrightofcentre.com/2011/05/right-to-report-on-parliament.html

@JamesFirth

5 Iain May 23, 2011 at 19:47

Putting muck-raking newspapers aside for a moment, I think that Imogen has the right to talk about a true event that happened in her life, and tell her story. Why shouldn’t she?

6 Andrew Peters May 23, 2011 at 19:48

You say “I’ll wait for the it to be discharged before I name him.” But you don’t need to name him as everyone already knows who it is (unless you consider that the internet, national TV networks and a Scottish and several foreign press publications is not wide enough exposure). Even my 63 year old mum knows his name, although she is so far removed from “popular culture” she has no idea who he is.

This is now about more than one privacy case. It is about the concept of privacy itself and roll of injunctions in protection of that privacy. My own view is that the law is vague and needs tightening. There is surely a legal way to stop individuals bringing the law into disrepute with silly injunctions and, at the same time, giving inidividuals the privacy they deserve. If there isn’t, or until there is, members of the public at large, and of the Press in particular, will delight in finding myriad technological ways to make sure everyone knows who these people are and no court or judge will be able to stop them. If this has the unintended consequence of bringing the Judiciary into the 21st century that also may not be a bad thing.

7 Janvier May 23, 2011 at 19:49

I completely agree. Just because you have the privilege of parliament, it doesn’t mean you have to use it – the yelling “fire!” in a crowded theatre issue. In this instance, John Hemming is clearly being an arse. I am concerned that (some of) our elected representatives disrespect the position we have granted them and abuse their power in such a fashion. These are not actions befitting someone with the title “honourable”.

8 Number1ScumMum May 23, 2011 at 19:52

Sorry don’t agree with your points at all for two main reasons

1. Parliamentary Privilege is far, far older than the Human Rights Act. Hemming’s right to say what he likes in Parliament takes precedent. Whether the media choose to report what he said is entirely their choice.

2. What about Imogen Thomas’ right to Free Speech? I have no idea what went on between the two of them, but that something happened is not disputed by either side. However, she has been accused in court of being a blackmailer by a faceless adulterer without the right for her accuser to be cross-examined or have his claim challenged in any way. Frankly, Rosemary West got treated more fairly by the justice system

9 Maurice Milligan May 23, 2011 at 19:53

Many people are not concerned with the issue of whether this is a privacy issue or one about the morals of red top journalism. They are intrigued that only very rich people seem to be able to avail themselves of this protection. Where there is a seemingly simple case of one law for the rich and one for everyone else, soon everyone else ceases to care about protecting the rich, whether they be rich footballers, rich ex-bankers or rich lawyers.

10 Anonymous May 23, 2011 at 19:55

Great post. @JamesFirth, if judges misunderstand the law, it is for Parliament to hold them to account by legislating to make the law clearer. How much faith could anyone put in a legal system where judges were held to account based on the “public mood”? It is a good thing to have a judiciary which focuses more on applying the law than the headlines.

11 DaveB May 23, 2011 at 19:56

These injunctions can only be afforded by the rich. It can’t be one rule for the rich and another for the poor.

John Hemming was entirely right to do what he did as this case of affairs was getting absurdly out of hand. These footballers have to learn they are not beyond reproach.

12 Mel Riley May 23, 2011 at 19:59

Good article – don’t forget though – it wasn’t just John Hemming who behaved in this way – remember Paul farrelly and the Trafigura affair – many parallels as far as I can see. Surely opprobrium of conduct in parliament deliberately intended to breach a court order can’t depend on the particular injunction in question?

13 Neil Macehiter May 23, 2011 at 20:03

Hear hear! Excellent post Carl. Hemming’s behaviour is contemptuous in my opinion.

He shot himself in the foot with the following statement to the BBC:

“Basically when he[the professional footballer]… showed that he was going to go after relatively normal people and try and prosecute them, for gossiping about him on a matter of trivia, I think he has to be held to account for that,”

The injunction was granted on the basis that the right to a private family life outweighed the public interest. Hemming clearly agrees by referring to gossiping and trivia yet believes it’s OK to flout the injunction, thereby doing the self-serving media’s work for it. Despite his best efforts and somewhat surprisingly the courts has refused to, as Justice Eady put it, “buckle every time one of its orders meets widespread disobedience or defiance?”.

Hemming should apologise for his behaviour and/or be castigated by the parliamentary authorities.

The Internet clearly poses challenges to the enforcement of the law, not to the law itself, and something needs to be done. Hemming’s actions are the wrong way of going about it.

14 Paul O'Brien May 23, 2011 at 20:11

What Hemmings doesn’t seem to grasp is that the purpose of Parliamentary privilege is to allow MPs to discuss matters freely without the fear of being sued for defamation etc. And the purpose of reporting privilege is to allow the media to report proceedings in Parliament without the fear of being sued themselves. It’s not a device to allow individual MPs to behave as a self-appointed appeal court. Hemmings is obviously abusing it, and it sets a dangerous precedent.

That said, it’s hard to understand why this particular injunction wasn’t recalled today. It clearly hasn’t been effective to prevent the story entering the public domain, so it’s difficult to see what purpose the injunction is still serving that could outweigh article 10. But that’s a matter for the Court of Appeal, not for backbench attention seekers.

15 Neil Macehiter May 23, 2011 at 20:18

“And the purpose of reporting privilege is to allow the media to report proceedings in Parliament without the fear of being sued themselves. ”

It is unclear, based on Lord Neuberger’s report, whether this is the case in all circumstances:

Media reporting of Parliamentary proceedings is protected by the Parliamentary Papers

Act 1840, which provides an absolute immunity in respect of civil or criminal proceedings for Hansard and any other publication made by order of Parliament. It also provides an absolute privilege for any individual who publishes a copy of Hansard.

– The 1840 Act also provides a qualified privilege in civil or criminal proceedings for individuals who publish a summary of material published in Hansard.

– Qualified privilege arises where such a summary is published in good faith and without malice. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice.

– Where media reporting of Parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings they may well not attract qualified privilege.

– Where media reporting of Parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies. There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings.

16 Frank May 23, 2011 at 20:31

I disagree. Mr Justice Eady has made is making the British courts a laughing stock around the globe, both with regard to libel and censorship. How you can argue that a woman revealing that she had sexual relations with a man breaches that man’s human rights is utterly incomprehensible.

The judges are wrong and need to start listening to the rest of the country and start implementing the law as it was intended, rather than trying to increase the fees given to their barrister colleagues.

17 Anonymous May 23, 2011 at 20:40

There’s nothing wrong with the privacy law Parliament enacted in the Human Rights Act 1998, and which the judges are loyally applying…

Does the Human Rights Act 1998 explicitly authorize superinjunctions? Does it even explicitly authorize prior restraint by way of injunctions, as opposed to post-facto actions for invasion of privacy?

My understanding (and do please correct me if I’m wrong) is that superinjunctions are a recent judge-made innovation. The Human Rights Act appears to have given licence to a small number of judges, some of whom appear personally hostile to freedom of information, to impose their preferences under the guise of “loyally applying” the Human Rights Act.

I find it astonishing that, … so many people swallow the claim that it’s judges who are out of control.

You do? What about the Fred Goodwin superinjunction? What about Trafigura?

18 David Allen Green May 23, 2011 at 20:40

I agree with Carl.

There really is no point having any privacy law and rule of law if it is subject always to the whim of Hemming (who clearly does not know what he is talking about).

19 Jimmy May 23, 2011 at 21:08

Particularly troubling is the fact that the Court has found evidence of blackmail. This of course may be groundless but the usual balancing act in these cases clearly supports maintaining the injunction at least until that issue is resolved. I note in passing that Ms. Thomas was represented at two hearings by silk despite claiming to have no interest in the outcome. This can’t have been cheap. If the Courts are being made a laughing stock it’s not the judges who are responsible, but rather a gutter press intent on bringing them to heel. As for the odious Hemming, has any MP ever set himself up as a specialist in a field of which he is so transparently ignorant?

20 Arty Smokes May 23, 2011 at 21:12

You wrote of Hemmings: “His sheer arrogance is breathtaking.”
That is your judgement.
[The footballer’s] sheer arrogance is breathtaking [redacted – Carl]. That is mine.

If MPs have to use rather shady tactics to highlight apparent flaws in the law, then so be it. At least the public can vote for – or against – MPs that voice their opinions. Bending the law is good for democracy. Privacy laws that only protect the rich are not.

21 Daniel Bergquist May 23, 2011 at 21:13

I agree with Frank, it is ridiculous that a woman cannot reveal who she has slept with to whoever she wants, because that man took out an expensive gagging order. The rule of law was not cheapened by Hemming, it has been worn down by the irresponsible granting of gagging orders. Whilst Hemming is certainly no hero of mine, he has hopefully helped to put an end to this ridiculous trend..

22 Neil Macehiter May 23, 2011 at 21:14

Responding to Anonymous above:
“Does the Human Rights Act 1998 explicitly authorize superinjunctions? Does it even explicitly authorize prior restraint by way of injunctions, as opposed to post-facto actions for invasion of privacy?”

Injunctions are a means of dealing with the fact that when a decision is taken that the right to private family life (Article 8 of the HRA) outweighs freedom of expression in the public interest (Article 10 and Section 12 of the HRA – the latter introduced explicitly introduced to address press concerns) that there is a means of providing temporary relief to protect privacy in the event that a challenge is made.

The challenge with privacy, as opposed to defamation, is that it you can’t resurrect privacy if it is breached. Defamation can be addressed post-facto through corrections and statements that what was said was wrong. You can’t achieve the same with privacy: you can’t say it is now private. The issues at hand do not concern with the validity of the claim that a professional footballer is having an affair: they concern whether it is in the public interest, as opposed to interesting to the public, for that information to be published. If a newspaper publishes a claim that a professional footballer is has fascist sympathies without evidence than that statement can be corrected in the event that it is proved false and the harm is undone.

“My understanding (and do please correct me if I’m wrong) is that superinjunctions are a recent judge-made innovation. ”

Injunctions can be anonymised where publishing details of the claimants would make it obvious who was involved e.g. if a newspaper published that professional footballer X and supermodel Y had taken out an injunction against newspaper Z, what conclusion could you draw or what inference could you make. Superinjunctions take that one step further to address the fact that the existence of the injunction could result in the right to a private life being at risk. It is important to note that there have only been 2 superinjunctions since the John Terry superinjunction was overturned more than a year ago. It is also important to recognise that the injunction in the case which has hit the headlines was in part in place because the professional footballer was being blackmailed.

“The Human Rights Act appears to have given licence to a small number of judges, some of whom appear personally hostile to freedom of information, to impose their preferences under the guise of “loyally applying” the Human Rights Act.”

Nonsense! The Human Rights Act is about balancing the right to a private life and freedom of speech in the public interest (rather than freedom of information). What right do we have to know who is having an affair with who unless it compromises their role.

“What about the Fred Goodwin superinjunction? ”

Have you read the judgements with respect to Fred Goodwin injunction (it was not a superinjunction – it was an anonymised injunction?). In order to overturn the injunction the media would have to demonstrate that there was a public interest in knowing that he was having an affair with a colleague, otherwise privacy wins out. The media offered no such evidence despite multiple opportunities. They claimed it was against RBS governance policies but didn’t bother to ask RBS; they claimed it prevented information being passed to the FSA which it didn’t. They simply could not provide justification for breaching privacy. The only reason the anonymised injunction was partially lifted was because it was broken by an MP and was in the public domain as a result.

In the case of Trafigura it was an error (who doesn’t make errors) that was addressed.

What about Trafigura?

23 Neil Macehiter May 23, 2011 at 21:23

“I agree with Frank, it is ridiculous that a woman cannot reveal who she has slept with to whoever she wants, because that man took out an expensive gagging order. The rule of law was not cheapened by Hemming, it has been worn down by the irresponsible granting of gagging orders. ”

Who she slept with or who she claimed to have slept with? In the case that has garnered the most interest, there was alleged blackmail involved.

So, you lay the blame fairly and squarely at the hands of the judiciary on the basis of granting an injunction and not on the media for publishing stories to sell papers that concern information that is not in the public interest. Explain to me that in the current case what the public interest is and why that outweighs the footballer and his family the right to privacy.

If you were a magistrate and someone claimed to be having an affair with you and you found out the press had been contacted would you be happy for it to be published as truth in your local newspaper? Would you expect some protection from the law or should the right of the person claiming to have had the affair override your right to privacy given the fact that your affair does not affect your role.

24 Richard May 23, 2011 at 21:24

Personally I find the very idea of a privacy law being extended to this extent disgusting. I also find that Hemming was simply highlighting the ridiculous nature that the injunction found itself in – on one hand every newspaper in the world, bar those published in the UK could print who it was, and on the other was a judge who claimed worldwide jurisdiction, which it is the role of parliament to enforce. When the said footballer then threatened to sue Twitter, which does not have any effective UK operations, it became parliament’s issue.

The underlying issue appears to be that if Person A and Person B had a relationship, then Person A, given sufficient monetary funds, can gag Person B on account of their privacy, and not be named. This both seems ludicrous and impossible to enforce. In an age where sending a message to millions has never been easier, it is simply highlighting that this injunction was both impossible to enforce and insane to suggest.

That we should gag MPs to stop them from highlighting this insanity is also stupid. The AG had already declared that he wasn’t going to investigate the people on Twitter, or the journalist. So those who violated the injunction would face no consequences, as such a prosecution would not be in the public interest.

25 Neil Macehiter May 23, 2011 at 21:26

In response to Arty Spokes:

“If MPs have to use rather shady tactics to highlight apparent flaws in the law, then so be it.”

The flaws aren’t in the law: they are in the implementation of the law. Why did Hemming have to name the individual. He could equally have said that it is clear that the details of the professional footballer have been published in a Sunday Herald in Scotland and on Twitter and that calls into question the effectiveness of enforcement. What purpose did it serve to flout the injunction?

26 Neil Macehiter May 23, 2011 at 21:30

In response to Richard:
“The underlying issue appears to be that if Person A and Person B had a relationship, then Person A, given sufficient monetary funds, can gag Person B on account of their privacy, and not be named. ”

Why would Person B want the information published. If it because there is a public interest concern that outweighed the privacy benefit then they could challenge the injunction and if the judge thought they would win it would be overturned. If it is to make money then where’s the public interest in knowing that A had an affaire with B?

27 Jon Dickins May 23, 2011 at 21:45

@James Firth The role of judges is to apply the law, not understand “the public mood”.

28 dw May 23, 2011 at 21:53

In order to overturn the injunction the media would have to demonstrate that there was a public interest in knowing that [Goodwin] was having an affair with a colleague, otherwise privacy wins out.

Goodwin was the chief executive of a bank that required a multi-billion pound government bailout, and received a munificent retirement package that is effectively financed by the taxpayer. If the public interest does not outweigh privacy in this instance, the judges have clearly got their balancing tests wrong.

29 Neil Macehiter May 23, 2011 at 21:59

“Goodwin was the chief executive of a bank that required a multi-billion pound government bailout, and received a munificent retirement package that is effectively financed by the taxpayer. If the public interest does not outweigh privacy in this instance, the judges have clearly got their balancing tests wrong.”

So, should the press also be able to publish his medical records, the addresses of where his children go to school, their email addresses etc etc. Does his role mean that effectively everything is off limits as far as private life and that of his family is concerned. If the answer is no then explain to me why the fact that he was having an affair as opposed to suffering from xyz is in the public interest. The media certainly couldn’t which is why they failed to overturn the injunction. It might be interesting for the public to know but that is not the same as the public interest. Equally it might be deemed a punishment to publish that information but that would be equally wrong.

30 Anonymous May 23, 2011 at 22:01

If you were a magistrate and someone claimed to be having an affair with you and you found out the press had been contacted would you be happy for it to be published as truth in your local newspaper? Would you expect some protection from the law or should the right of the person claiming to have had the affair override your right to privacy given the fact that your affair does not affect your role.

I wouldn’t be happy to have the information published.

However that fact that a powerful man (and it does always seem to be a man) isn’t happy to have embarrassing information published doesn’t give him a right to suppress the information. Except in the mind of some (overwhelmingly male) judges.

should the right of the person claiming to have had the affair override your right to privacy given the fact that your affair does not affect your role

Who is to say that the affair does not affect a magistrate’s role? A person who acquires a public office of trust thereby of necessity gives up some of his privacy. What utter arrogance to suppose otherwise!

Do we wish to end up like France, where a powerful man can behave as a sexual predator with impunity?

31 Daniel Bergquist May 23, 2011 at 22:02

“Who she slept with or who she claimed to have slept with? In the case that has garnered the most interest, there was alleged blackmail involved.”

It is not actually relevant whether she is telling the truth or not – if she is lying then that can be proven and corrected. The point is, she should be free to tell people the details of her own life. If there was evidence of blackmail, I have to ask why was she not prosecuted for blackmail?

32 dw May 23, 2011 at 22:03

@Neil Macehiter

Goodwin was engaged in workplace misconduct, at the very bank he mismanaged to such an extent that it later required huge bailouts that will probably burden the British taxpayer for generations.

It is clearly in the public interest that such workplace misconduct be exposed.

33 Jim Nately May 23, 2011 at 22:16

I can’t help but fear that one day Mr Hemming is going to leap feet first to the defence of someone accused of a crime, leading to a collapsed trial. Someone may well walk, because Mr Hemming thinks they’re innocent.

Clearly, Parliament needs to examine how it wants its sub judice rule to work. The opprobrium cast upon Hemming by the Speaker should not be quietly brushed under the rug. A serious constitutional crisis could emerge from this. Parliament needs to assess this.

34 Anonymous May 23, 2011 at 22:23

@Neil Macehiter

Goodwin was engaged in workplace misconduct, at the very bank he mismanaged to such an extent that it later required huge bailouts that will probably burden the British taxpayer for generations.

It is clearly in the public interest that such workplace misconduct be exposed.

35 Lloyd Jenkins May 23, 2011 at 22:59

@DaveB
“These injunctions can only be afforded by the rich. It can’t be one rule for the rich and another for the poor.
John Hemming was entirely right to do what he did as this case of affairs was getting absurdly out of hand. These footballers have to learn they are not beyond reproach.”

You’re conflating two issues. The first one (affordability) can be dealt with by extending legal aid to those few cases where ordinary people find themselves harassed by the media.

The second strikes me as plain wrong. Footballers aren’t ‘beyond reproach’: their footballing skills are criticised all the time. I don’t see how being a footballer means that your private life (and that of your family) becomes public property. Surely they have the same right to privacy as anyone else? That’s how constitutional rights tend to work.

And the fact remains that Hemming could have made the same point without naming the relevant party.

36 Lloyd Jenkins May 23, 2011 at 23:02

@Daniel Bergquist
Why give her right to free speech automatic precedence over his/his family’s right to privacy? Surely cases like this turn on the facts, and so we should wait for the trial.

37 Paul McConville May 23, 2011 at 23:03

@Anonymous at comment 34,

And just to repeat, the paper in question did not seek to argue, for whatever reason, that the Goodwin disclosures were in the public interest!

This whole farrago is proof, once again, that the public interest and what interests the public are two very different things.

38 Michael May 23, 2011 at 23:04

Great post – I sense this one could come back to bite Hemming rather nicely!

39 Jim Nately May 23, 2011 at 23:19

@Daniel Bergquist
“Why was she not prosecuted for blackmail?”
Because the elements of the offence of blackmail were not clear beyond a reasonable doubt. And there is some scope for debate over whether the usual Max Clifford etc practice of asking a paper for a bid for the rights to publish, then asking the victim/subject for a bid for a guarantee not to publish is the crime of blackmail per s.21 of the Theft Act 1968

At present, all we know is that there is a reasonable grounds for believing that Thomas may have told the footballer that she would not sell the story to the papers if he gave her some amounts of money (she disputes this, and not findings of fact have been made at this time). But even if true, while that may constitute blackmail to the layman, it does not automatically do so for the law.

40 Paul McConville May 23, 2011 at 23:51

Having typed, at length, a comment on my phone, it seems the internet has eaten it. In honour of my words of wisdom (hah) I will try again!

There is clearly a debate to be had as regards so called “super injunctions”, privacy and prior restraint issues. However the CTB case is not the one to have as the battleground if the press want things to go their own way.

Here, as in all of the published judgements in anonymised injunction cases on privacy, the courts have carried out the relevant balancing test. On one hand, they have the right to privacy and on the other the right to free expression. The judges did not invent these – instead they are in the law as laid down by Parliament. It is quite clear that each case turns on its own merits and the judges have not been afraid to refuse or withdraw interim injunctions (in the John Terry case, for example).

Here we have a case where, as seems to be standard in recent cases, including Fred Goodwin, the press do not advance any public interest argument at all. Still the judges carry out their balancing test, but the absence of a public interest (rather than of interest to the public) makes it far more likely that an interim injunction will be granted.

It should also be noted that these orders, at this stage, are interim orders pending a full trial where each side would be able to argue its case and put forward witness evidence in support.

It is also noteworthy that, from what I have seen, the recent tack of the press is not necessarily to oppose an interim injunction, but not to consent, thus allowing them to say that they have been “gagged” by the evil celebrity plaintiff.

One stated reason for the anonymised injunction and the strict rules applicable, is to stop jigsaw identification. In more than one of the recent causes celebres there have been articles in the press or on newspaper’s websites which, standing alone, seem to be there for little or no reason, but are in fact one way of the paper to creep round the orders by way, for example, of gushing references to someone being a “family man” and to his glowing spouse etc. The editor clearly knows what he is doing, but there is nothing actually in the article to break the order. In fact CTB and his family have recently been prominent in the press for, I am sure, this very reason.

Turning specifically to CTB and to Ms Thomas, there are four matters which seem to have been ignored by the media as she has travelled round the press and TV studios weeping into her hankie. (1) She was represented at the hearings in this case, as she is one of the named parties. (2) She did not oppose the granting of the interim injunction against herself. (3) She failed to produce to the court a statement or any evidence to contradict that of CTB, thus allowing the court to form a view that there may well have been a sort of blackmail afoot here. (4) The presence of photographers referred to at the hotels where Ms Thomas arranged latterly to see CTB suggested to the court that there was some sort of sting operation in effect.

In addition, neither the newspaper nor Ms Thomas have appealed against the granting of the interim orders, which they could have done if it was felt by their advisers that the court had erred in making the order.

If this were a libel case for false accusations, then the courts have for many years worked on the basis that a finding in favour of a plaintiff and an award of damages will suffice.

However in connection with privacy matters, there needs to be a system of prior restraint open to the courts, though it ought not to be granted automatically. Once the toothpaste is out of the tube, then it can’t go back in. A later award of damages for breach of privacy, as per Mosley, is not sufficient.

We now turn briefly to the failure of the agents for CTB to obtain a relevant order here in Scotland because, in the absence of such, the Sunday Herald felt free to publish yesterday. But already publications in Spain, USA and elsewhere had printed the name. The lack of any application to the Court of Session however left the door wide open for a publication of the type which took place, and this has been known to be the case since the days of Spycatcher, when the book could be bought in Gretna but not in Carlisle, for example.

So, in this case, where we have, allegedly, the newspaper in question working, whether innocent or not, with an apparent blackmailer (as stated by the judge but not specifically alleged by CTB) for the financial gain of one, other or both defendants, the brave Mr Hemming felt it appropriate to jump in today and name CTB.

This was, apparently, to stop the secret imprisonment of thousands of twitterers, notwithstanding that the Attorney General had stated, minutes before, that no such proceedings (and whether or not in secret) were presently in contemplation.

This effort to link the issue with secret imprisonment smacks of the campaign by Mr Hemming re the Family Courts (already referred to in detail by this website) and where he was shown to be spouting arrant nonsense.

It is quite clear that Mr Hemming’s disclosure today has only been in the interest of News International, an alleged blackmailer, and Mr Hemming himself. He has abused the privilege he has as a Parliamentarian, and to what end?

As far as the wider argument goes, all the good generated by the “outing” of the Trafigura injunction has been lost as a result of the case of CTB being seen as the present battle ground.

The only people frankly to emerge from this mess with any credit are the judges – they have applied the law as given to them by Parliament – have applied the tests laid down in the legislation – and have tried to uphold the Rule of Law, despite the efforts of others such as Mr Hemming to determine what the outcome should be.

Do we want to be in a situation where the papers are the ultimate judges as to what private mistakes are aired for the prurient interest of some members of the public? The same fine and upstanding press who seem to have done more bugging than even MI5 as described in Spycatcher!

41 No fan of them.. May 24, 2011 at 00:57

Excellent comment@40 – Paul

Contrast the print medias outrage in this instance with their almost eerie silence and lack of general comment as far as ‘Hackgate’ is concerned..

John Hemmings is a disgrace. Google his history and ‘relationship’ with Kelvin the Hamster and you will swiftly draw your own conclusions. Their must be some irony in the fact that he has a blog that moderates comments prior to publishing them. So much for freedom of speech on the net..

The footballer is in the wrong from a moral and ethical standpoint. No arguments there. The use of an injunction was not the smartest course of action.. He would have been better taking his actions to the police.

However, since when did our representatives in parliament become paid up members of the press? I am not buying the ‘stopping people from going to jail’ argument for one minute..

Depressing that this is all happening against the backdrop of ‘Hackgate’. I would rather hear Hemmings voice on the role of News International in that scandal…

42 Anonymous May 24, 2011 at 00:58

Hemming is guilty of constitutional vandalism. His arrogance is indeed breathtaking.

I had thought of leaving a long comment, but cannot improve on what Paul McConville has just said.

On the substance of the law itself, I remain unconvinced that the law of privacy should extend to protecting a participant in an affair from disclosure of the fact of the affair by the other party (as opposed to protecting him/her from revalation of intimate and salacious detail; and I appreciate that in this particular case there was the potential blackmail aspect as well). But all this is not to the point: Hemming’s conduct is indefensible whether one thinks the law ought to be changed or not.

I am interested in the potential consequences for Hemming. Given that Hemming’s conduct was (as I understand it) in breach of Parliament’s own rules, could the House not decide to waive privilege? If it did so, could he then be prosecuted for contempt?

43 Paul McConville May 24, 2011 at 01:15

Thanks to No fan of them and Anonymous 42 for your comments.

For all that various MP’s such as Tom Harris have deplored Mr Hemming’s conduct, we saw when the Speaker let the Met Police in to the Palace of Westminster how defensive MP’s get when they think people are “going after them”.

Even the various expenses fraudsters and thieves who are now guests of Her Majesty tried to argue that their crimes were protected by privilege (though unsuccessfully).

I see no chance that the House takes any action which would open Mr Hemming up to court action, and I suspect it is unlikely the Attorney General would give the go-ahead for any such proceedings against a fellow MP. (Not, I hasten to say, simply because he is a fellow MP.)

If CTB sought to proceed against Mr Hemming for breaking the injunction (a) does that require the AG’s approval and if not (b) how would a judge view Mr Hemming’s comments.

Would privilege hold or would this fall in to one of the grey areas described by the Master of the Rolls last week?

I don’t know, but suspect those questions will now be academic, at least in this case anyway!

44 txwikinger May 24, 2011 at 01:33

Looking at this issue from the perspective of multiple legal jurisdictions, I have to say, that I come to different conclusions than most people here, including you Carl.

I can understand that you are annoyed at John Hemming, since he as a guest of the blog did not think he had to abide by the rules, Carl has set. I think this had shown a lot of arrogance and disrespect to a private individual and their property, especially since Mr. Hemming has lots of other places to make any statement he wants. I have real problems with Mr. Hemming as an MP and hence as a member of one of the branches of government is trying to deny Carl the freedom to set rules and how to run his own blog.

However, this set aside, I think Mr. Hemming is right in doing everything he can to change a obvious aberration in the UK legal system which does not seem in existence in any other legal jurisdiction putting freedom of speech and freedom of press as a cornerstone of their democracy.

It is obviously not a working legal system where thousands of people can ignore a court order by using social media, but the press cannot report about it.

Yes it is true, the media is only interested in making money. So is the supermarket chain that makes unethical amounts of profit and is repeatedly been convicted of price fixing trying to achieve these profits. Still there is no injunction to stop them from doing so under contempt of court. Hence, consumers are not protected.

The argument by the latest judge, that the injunctions are in any way have an influence on harassment rather than protecting privacy is a red herring. How do publications by newspapers create any more harassment than the discussions about it on social media? Anybody who intends to really harass a celebrity will do so irrelevant where they can find the information needed. Harassment needs to be treated where it occurs. There is a harassment law and police can take actions.

However, the backside of the coin is the unequal application of law. The rich individuals and organisations can afford the costs of injunctions, the common people and small businesses cannot! Injunctions that prevent people to speak out, are one of the most fundamental invasions into democracy. One just needs to look at current and historical totalitarian regimes.

On the other hand, the Information Officer is totally overwhelmed by applications that poor people can afford, i.e. the misuse of their private data by big corporations and public bodies. They can afford to get injunctions against the publication of their deeds, but the common person whose privacy rights are violated every day, cannot. This is why it is a danger to democracy!

45 Arty Smokes May 24, 2011 at 02:27

It’s kind of surreal to find some of you appear to think Hemming should be punished for telling the truth. We better start putting gagging orders on every elected MP in case Hemming has started a new trend, and they all begin spouting established facts! We’d better ban newspapers from telling us the football scores too, because it’s obviously not in the public interest for them to be revealed.

This really is a black and white issue. You either believe in freedom of speech, or you believe in injunctions. You’re either pro-truth, or anti-truth. Which side are you on?

46 Anonymous May 24, 2011 at 08:41

Also very impressed by comment 40.

As a follow on from comments 42 & 43, a less controversial alternative to court action might be for the Speaker to use the House’s own disciplinary procedure and “name” Mr Hemming, should he persist in abusing privilege.

http://www.parliament.uk/site-information/glossary/naming-of-a-member/

47 ObiterJ May 24, 2011 at 09:40

I don’t think it is quite correct to say that Parliament enacted a privacy law in the Human Rights Act 1998 which the judges are loyally applying. Parliament enabled a privacy law to develop and, as Dominic Grieve said in Parliament yesterday, Parliament was aware of what it was doing. However, they did not attend to the detail and it is open to them to do so now.

I agree that Hemming was irresponsible particularly given the fact that Grieve had already announced the committee. They will have to take a very serious look at their sub judice rule.

I think you are right to say that there were better contributions to the debate than the one from Hemming. However, the term “far better MPs” might be unfair. An MP has to be judged on so many things and not just on one issue. He has been raising matters of some public concern (e.g. the Westminster Hall debate) and he seems fearless in doing so. Our Parliament was created by those willing to be fearless and to challenge the status quo.

48 Robin Levett May 24, 2011 at 10:49

@Number1ScumMum:

“However, she has been accused in court of being a blackmailer by a faceless adulterer without the right for her accuser to be cross-examined or have his claim challenged in any way.”

Firstly, think about how we know that.

Secondly, she has/had every opportunity to challenge the claim on the return date of the injunction.

As for the argument that Hemming is a courageous crusader for truth, justice and the English way; in a battle between the rich and famous (with the law on their side) and the rich, prurient and powerful, he has chosen the side of the rich, prurient and powerful. It is hardly surprising that super-injunctions are the preserve of the famous – theirs are after all the only names that will sell more newspapers or draw a larger audience share, and hence are the only ones whose privacy needs this type of protection.

@ObiterJ

“I don’t think it is quite correct to say that Parliament enacted a privacy law in the Human Rights Act 1998 which the judges are loyally applying.”

“Article 8
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Sounds like a privacy law to me; how are the judges not loyally applying it?

49 Ben May 24, 2011 at 10:58

Parliament created a right to privacy with the human rights act but it nowhere says that privacy must be protected by injunctions as opposed to, say, damages. It nowhere says that there must be prior restraint on free speech, of the kind rejected wholesale in that other great common-law jurisdiction, the USA.

That was the creation of Judges, mainly Eady, with the assistance of a small clique of barristers, (including one notable one who shares an office with the wife of a former PM, and literally wrote the book on privacy law). Rumour has it that either he or Eady or both were involved in three quarters of all superinjunctions made since the Act.

It is a judge-made law. And it is a bad one. And it is not too late for the Court of Appeal to change it.

50 Paul McConville May 24, 2011 at 11:01

To those who have commented that Ms Thomas was effectively ambushed and that the order was granted againt her without her even being aware of the first hearing, I would offer the following about procedures in Scotland.

Here, if it is felt necessary to gain protection of an interdict prior to service on the defender, whether in a privacy case, a commercial action or a matrimonial abuse case, the pursuer’s lawyer goes before a judge in chambers and can make such an application.

The judge has to be satisfied there is a prima facie case and that a pre-service interdict is justified.

The matter is then continued to a later hearing where the defender can appear and seek to have any such interim order made recalled or have the terms of it adjusted. If, after this hearing, the defender feels that the judge has erred in the decision, then they can appeal or, on a change of circumstances, seek recall or variation of the order at a later date.

If the defender has previously lodged a “caveat” then no interim order can be granted without them having a chance to be heard, though such hearings are fixed at very short notice.

All of the media in Scotland have, I am sure, caveats in place so cannot be interdicted without the chance to object. If the CTB v Thomas case had been in Scotland, and Ms Thomas had previously lodged a caveat (and they last for one year), then she too would have been able to appear at argue her corner prior to any order being granted.

I assume there are similar provisions in England and if so, and standing what the judge said in the CTB case, one can see why he was willing to grant an order prior to service on Ms Thomas.

I am sure that there have been injunctions granted in cases where (a) other judges might not have done so and (b) where the prevailing public mood is that an order should not be granted but, as I have said, in each of the published cases, the courts carry out a detailed balancing exercise.

Unless there are issues which are in the “public interest” or where the order, as in the Terry case is actually to protect commercial interest rather than the stated privacy interests, then the courts are taking a consistent line in refusing to allow private matters to be aired publicly.

One comment elsewhere suggested thst the judges deciding these matters were becomign like Ted Rogers in 3-2-1.

The thought of Eady J dressed as Dusty Bin is one which is making me smile as I type.

51 Richard May 24, 2011 at 11:08

That doesn’t name anything about super injunctions, or any injunction of any kinds.

It also states ‘or for the protection of the rights and freedoms of others.’ – which includes the freedom of speech. It should be up to elected officials to decide where the conditions for where the balance is.

If find the concept of ‘the public interest’ murky at best. There is little consensus on what would aid said public interest, and what exactly the public’s interest is. It seems clear that jailing thousands of people for saying something on a social network isn’t. It seems less clear that a privacy defence based on ‘Footballer fears boos and ‘cruel chants’ at matches if alleged affair became public, according to high court witness statement’ is in the public interest (a separate case).

I agree that the judges are doing their best, but I think they are treading dangerous waters that are causing a constitutional nightmare. This situation has been caused by MPs failure to fix the privacy law, by which I mean clarify where freedom of speech and freedom of privacy, one that they seem reluctant to do so.

Could CTB press for contempt of court without the AG’s say so? Probably. Would they wise to do it? No. Do I think a lawsuit against John Hemming is likely to succeed. No, and I think it would be a even bigger constitutional problem if it did go ahead.

The main problem with legislation as it stands, as I see it, is that it is unenforceable against social media. Twitter is protected by the DMCA Safe Harbor legislation, and the users on Twitter are protected by the freedom of speech amendment in the US Constitution, to which there is no parallel privacy requirement. As we live in a connected world, our diverse legal jurisdictions will present a huge problem for issues such as this.

52 James Medhurst May 24, 2011 at 11:33

Section 12(3) of the Human Rights Act specifically anticipates that injunctions will be available before trial in some cases. This is one area where judges cannot be accused of developing the law beyond the will of Parliament. Justice Eady refers to this in one of the CTB cases and explains, with more glee than is strictly necessary, that the test applied by judges in these situations has been defined in precise terms by our elected representatives. See paragraph 34:

http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html

53 David Stourton May 24, 2011 at 11:54

Ironically, one possible conclusion from this affair is that there ought to be more superinjunctions, rather than less, if rights of privacy are to be effectively protected.

A superinjunction (which this was not) prevents the fact of the granting of the inunction being reported. The mass defiance on Twitter in this case was probably in large part caused by widespread reporting in the mainstream press that a footballer had obtained an injunctions.

I do not mean to address in this post the question of what the extent of privacy rights should be – that does not matter for the purpose of this argument. Whatever one’s views on that question, almost every sensible person accepts that that there should be some right to privacy. Such rights can only be protected by injunction – there is no other mechanism (damages are obviously inadequate). The lesson from this case is (arguably) that if the Courts are to succeed in protecting privacy rights, they need to prevent widespread knowledge of even the fact of an injunction. That means more superinjunctions are needed.

However, I rather doubt the judiciary will endorse this reasoning. The tenor of Lord Neuberger’s report is very different.

54 Lloyd Jenkins May 24, 2011 at 12:01

@Richard
” That doesn’t name anything about super injunctions, or any injunction of any kinds.”
The need for injunctions is implicit in the concept of privacy. As others have stated, no amount of after-the-fact damages can make public information private. Without a very high level of damages it will remain profitable to breach others’ privacy. Those damages would lead to increased legal uncertainty.
“It also states ‘or for the protection of the rights and freedoms of others.’ – which includes the freedom of speech. It should be up to elected officials to decide where the conditions for where the balance is.”
The key argument isn’t about elected officials deciding: no-one’s questioned Parliament’s ability to change privacy law. it’s about individual MPs deciding to effectively disapply the law in individual cases without convincing the rest of the house that changes to the law ought to be made. Put simply, a legal system in which MPs are free to overturn judgments in individual cases can’t be said to have an independent legal system so much as a politicised one.
“The main problem with legislation as it stands, as I see it, is that it is unenforceable against social media. Twitter is protected by the DMCA Safe Harbor legislation…”
Much child pornography is kept on servers out of the jurisdiction. Should we give up on the fight against that? Twitter poses problems of enforcement rather than substance. And, given the lifetime in the popular imagination that any cause holds (particularly on the internet), it’s not necessarily a big one.

55 Sceptics 'R Us May 24, 2011 at 12:16

Not had a chance to read all the comments but it is tragic to see that so many people are unable to see where the real battlefield lies. This is all about preserving and extending tabloid / conventional media power base. Hemming is just a stooge in all this, a useful idiot

Anyone who thinks that in the longer term this is going to enhance their freedom is deluded. It’s not lost on the press, see eg

http://blogs.pressgazette.co.uk/editor/2011/05/16/super-injunction-crackdown-on-google-and-twitter-could-be-good-news-for-journalists/

‘Shouldn’t the super-injunction furore be viewed as an opportunity to reign in the many blogs, social media websites and others who seek to publish without responsibility?
This could turn out to be an opportunity for the professional journalism industry – an industry which invests a great deal of time and money in ensuring that what it publishes is legal and ethical.
New Government regulation on publishers such as Twitter and Google could enable the real publishing industry to regain ground lost to new media – particularly the many millions of lost advertising income.’

56 Richard May 24, 2011 at 12:43

@Sceptics ‘R Us

“New Government regulation on publishers such as Twitter and Google ” – Heh.

a) Twitter and Google are US companies bound by US law, any attempts to curb their freedom to post what they like will backfire on the UK government.

b) Government regulation of the internet is woeful. Especially of content which the public feels it has a right to see. Not to mention that it is unlikely to possible in the general case – it would require mass censorship of the internet, to protect a business model which is going the way of the dinosaurs.

@Lloyd Jenkins

Then make the damages punitive. That is the answer, if you believe that there is a right to privacy in this case. Personally, I don’t. Rights to privacy should be enumerated, in my opinion. Getting a injunction against someone else publishing something they know is absurd and unworkable. The village gossip knows that.

57 dw May 24, 2011 at 12:48

@David Stourton:
almost every sensible person accepts that that there should be some right to privacy

one possible conclusion from this affair is that there ought to be more superinjunctions, rather than less, if rights of privacy are to be effectively protected.

If privacy rights require superinjunctions, give me neither. If that makes me not “sensible”, so be it.

58 JuliaM May 24, 2011 at 12:50

David Allen Green: “I agree with Carl.”

Well, I’ll go to t’foot of our stairs…! 😉

It’s noticeable that, yesterday on Twitter, it was ALL the lawyers – left-, right- and centre-leaning) that were squealing the loudest. Interesting…

59 Jess The Dog May 24, 2011 at 12:56

Is the issue of ‘social media’ really relevant? Regardless of the arguments about the use of these injunctions, they are applied to the mainstream media, which has a substantial commercial interest in reporting what seems to be termed ‘tittle tattle’ as well as an authoritative reputation which the Internet largely lacks. So, seven hundred thousand people can tweet a rumour (footballer infidelities or Osama Bin Laden’s enjoyment of the IT Crowd TV show) and this has as much, or as little, weight as any other ‘gossip’.

Having said that, it does seem odd that the privacy of someone firmly in the public domain is being treated so preciously, particularly when this involves an alleged extra-marital liaison. However, it does seem as if there are other interests at heart (Imogen Thomas does not object to the injunction and may have future publication in mind) and the tabloid media are hardly shining saints of truth and integrity.

60 dw May 24, 2011 at 12:58

@Neil Macehiter:

In the Fred Goodwin case, are you saying that

a) no public interest justification was offered, or that

b) one was offered and that it was rejected by the court

If b) is the case that I restate my opinion that the judges have simply got the balancing test wrong. The workplace misconduct of the chief executive of a huge bank of systemic importance to the UK economy is clearly in the public interest, even if one disregards the subsequent bailouts and taxpayer-subsidized pension.

61 Robin Levett May 24, 2011 at 13:40

@JuliaM #58:

“It’s noticeable that, yesterday on Twitter, it was ALL the lawyers – left-, right- and centre-leaning) that were squealing the loudest. Interesting…”

Perhaps the fact that those with the best grasp of the legal issues were united, whatever their politics, should tell you something about the argument?

@Richard #51:

“That doesn’t name anything about super injunctions, or any injunction of any kinds.

It also states ‘or for the protection of the rights and freedoms of others.’ – which includes the freedom of speech. It should be up to elected officials to decide where the conditions for where the balance is.”

I take it that this was a response to my #48.

Damages and injunctions are remedies generally available to remedy and to prevent breach of private law rights. Your favoured remedy of damages isn’t mentioned in the law either; your logic suggests that they shouldn’t be available either.

Indeed there is a balance to be struck between freedom of speech and privacy. Parliament has every right to intervene and, subject of course to compliance with its prior legislation (the Human Rights Act) set the conditions for availability of injunctions. In the meantime, the Courts have to work with what they’ve got; and what they’ve go0t is precisely what parliament, when passing the Human Rights Act, wanted – see Eady’s judgment in the CTB case at para 19:

“The courts are required to carry out a balancing exercise between competing Convention rights, as was always overtly acknowledged by the government prior to the enactment of the Human Rights Act 1998. It was, for example, explained by the then Lord Chancellor, Lord Irvine, when the bill was before the House of Lords on 24 November 1997 (Hansard, HL Debates, Col.785). He said that any privacy law developed by the judges following the enactment would be a better law because they would have to balance and have regard to both Article 8 and Article 10 (as indeed has been happening over the last decade). When the statute came into effect in October 2000, it explicitly required the courts to take into account Strasbourg jurisprudence when discharging those responsibilities. ”

@dw 59:

The Goodwin injunction (not, note, a super-injunction) was initally made over one of two public interest objections; at the return date is was continued until trial with no objection by NGN on public interest or other grounds, and that remained the case at the hearing last week. So a) is correct.

As for the public interest you claim; how do you say the affair could or even might have affected the Shred’s management of RBS? If you can point to nothing, then we’re back to the prurient interest in the private lives of the rich and famous.

62 dw May 24, 2011 at 13:49

@Robin Levett:

As for the public interest you claim; how do you say the affair could or even might have affected [Goodwin]”s management of RBS? If you can point to nothing, then we’re back to the prurient interest in the private lives of the rich and famous.

Since I’m not allowed to know any of the details, I can only speculate, so here goes:

* he was too busy carrying on the affair to focus on his work
* he promoted his lover because of the affair rather than because of her suitability
* he inappropriately entrusted corporate secrets to his lover

Quite frankly, the possibilities are endless.

63 dw May 24, 2011 at 13:53

Slightly OT, but I would appreciate any comment from the legal experts here on the ZAM v CFW libel super-injunction case (of which the forbidden details are, of course, only a Google search away). When did super-injunctions start to become used in libel cases?

64 dw May 24, 2011 at 13:56

Apologies: I meant “anonymized injunction”, not “super-injunction”.

65 Anonymous May 24, 2011 at 14:01

@Richard

Google’s licence to operate in China depended on it’s compliance with Chinese legislation.

Twitter’s Ts&Cs contain state

You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

Meantime they are in France discussing the levels of control that should be exercised over the Net and the constraints that may legitimately be placed on their services by local legislations

The Wild Electronic Frontier may not have the degree of liberty in the future that the armchair and keyboard freedom fighters imagine

This sort of nonsense is actually hastening the process. The people who will really benefit from this, as Carl and Paul McConville both point out,are the traditional media

66 Sceptics' R Us May 24, 2011 at 14:07

@ Richard

Sorry. Posted as ‘Anonymous’ @ 14.01 in error

And ‘it’s’ should, of course, have been ‘its’

67 Anonymous May 24, 2011 at 14:09

@dw #61:

“Since I’m not allowed to know any of the details, I can only speculate, so here goes:

* he was too busy carrying on the affair to focus on his work
* he promoted his lover because of the affair rather than because of her suitability
* he inappropriately entrusted corporate secrets to his lover”

Don’t you think that if NGN had any evidence of any of these happening they’d have so claimed in support of a public interest argument in favour of disclosure? So either NGN is asleep at the switch, or NGN wanted the injunction to remain in place for tactical reasons as a stick with which to beat anonymised injunctions, or there is no evidence that any of this happened.

The first is desperately unlikely; the second hardly consitutes a good faith argument against continuance of the injunction; so leaving the third by far the most likely.

68 Robin Levett May 24, 2011 at 14:10

Sorry – #66 was me.

69 Lloyd Jenkins May 24, 2011 at 16:38

@dw
” Slightly OT, but I would appreciate any comment from the legal experts here on the ZAM v CFW libel [ananymised] injunction case… When did [anonymised] injunctions start to become used in libel cases?”

Tugdenhat J was clear that injunctions are only available in libel where: a) the words are clearly defamatory, b) the defendant offers no defense (i.e. truth etc.) and c) damages would not suffice as a remedy. He also points out that the fact that ZAM had an injunction would lead to him/his family facing ‘invasive speculation’ about what the libel was, which isn’t a fair outcome given that he’s done nothing wrong. That lead to the anonymity. Inforrm did a cracking post on their blog about ZAM.

70 ObiterJ May 24, 2011 at 17:54

@ Robert Levett – in your comment re my earlier post you have merely quoted the convention. Parliament was well aware that a law relating to privacy would develop. As Dominic Grieve pointed out, there was extensive debate at the time the HR Bill was before Parliament and HRA 98 s12 was one outcome of that debate. However, Parliament did NOT attend to the detail of what might emerge – it was left to the judges to balance the various rights. Again, as Grieve stated, it is open to Parliament to intervene and the committee being set up gives the opportunity for them to do so.

To merely state that the judges are applying the law as enacted by Parliament is not to state the full story.

71 Robin Levett May 24, 2011 at 18:44

@ObiterJ #69:

“in your comment re my earlier post you have merely quoted the convention.”

No – I have quoted the articles referred to as Convention Rights in, and scheduled to the Human Rights Act; the Act makes them UK law by making it unlawful for public authorities to act incompatibly with those Rights.

“Parliament was well aware that a law relating to privacy would develop…However, Parliament did NOT attend to the detail of what might emerge – it was left to the judges to balance the various rights.”

…and I have subsequently quoted Eady J referring to Lord Irvine stating the view in the debate on the Bill that it was *better* that judges develop the law rather than that Parliament do so.

That Parliament can now do so is not in doubt; but criticism of the judges for taking on the heavy lifting bequeathed to them by Parliament is hardly appropriate.

“To merely state that the judges are applying the law as enacted by Parliament is not to state the full story.”

Indeed; see above.

72 Tom May 24, 2011 at 18:58

The sad thing about this state of affairs is that the flaw in the application of the law is not technical; unfortunately, the resolute adherence to the law as it is has made a mockery of the rationale behind it – privacy. Continuing to attempt to ‘enforce’ an unenforceable injunction has generated ten times the fascination that would have existed. Privacy law doesn’t appear to have adapted to the times – i.e. the advent of social networking and 24/7 , instant media. John Hemming has essentially abused his privilege, but has quite effectively highlighted the problem – the application of law has been so inflexible as to look redundant. The continued enforcement of a toothless injunction undermines faith in the ability of the courts to balance privacy with freedom of speech. Perversely, Hemming has probably done CBT a favour by naming him – the wave has broken, and will slowly roll back. CBT will eventually become another in a long list of brief celebrity obsessions. It would have been over and done with much sooner had he simply accepted the reality – that the law, as it stands, can only go so far in protecting privacy.

73 Julie May 24, 2011 at 19:00

Great news! Hemming has done his worst. We can all stop worrying now about what he might do next.

74 Lloyd Jenkins May 24, 2011 at 19:11

@Tom
Tugdenhat took a very different approach today. He made the point that the mere naming of CTB isn’t the only invasion of his and his family’s privacy that’s likely to take place as a result of lifting the injunction. If the mainstream media still can’t publish articles about the alleged affair then it can’t intrude into his private life further with more ‘revelations’, leaving photographers outside his house etc. In his words “this is not about secrecy, this is about intrusion”.

75 Robin Levett May 24, 2011 at 21:53

@Tom #71:

“It would have been over and done with much sooner had he simply accepted the reality – that the law, as it stands, can only go so far in protecting privacy.”

Don’t forget that the real issue here, on CBT’s case, is that the other party was trying to blackmail him, and he put before the Court apparently credible albeit not conclusive evidence in support of that claim.

76 Ben May 24, 2011 at 22:37

@Robin Levett:

So judges having been tasked with making the law, we now have no right to criticise the law they have made, or them for making it?

Don’t be daft.

Lord Irvine expressed great confidence in the wisdom of the judiciary on that occasion. Events have, in my opinion, shown that to be misplaced.

77 Robin Levett May 25, 2011 at 00:19

@Ben #75:

“So judges having been tasked with making the law, we now have no right to criticise the law they have made, or them for making it?”

The former isn’t what I said. The latter is, in relation to the MPs who have weighed in. The repeated pejorative references to “judge-made law” are lazy and cowardly. The judiciary was expressly invited to develop the law; they cannot be criticised for doing so, although that doesn’t give them immunity for criticism for th law they have developed.

“Lord Irvine expressed great confidence in the wisdom of the judiciary on that occasion. Events have, in my opinion, shown that to be misplaced.”

Really? How so? Focussing for a moment on the CTB case, how is the law as developed wrong? Remember (i) that *any* right of privacy – and that is what both the Convention and the Act require – *must* connote restrictions on the right to publish and (ii) that the judge was faced with apparently credible evidence of a blackmail attempt.

Also remember that the source of any publicity for the identity of the lady involved is the lady herself.

78 Ben May 25, 2011 at 07:36

@Robin Levett:

If judges have made bad law, as they have here, they should be as open to criticism for it as MPs. We don’t say of MPs that they shouldn’t be criticised for the laws they pass because we elected them.

“Remember (i) that *any* right of privacy – and that is what both the Convention and the Act require – *must* connote restrictions on the right to publish”

Now you are pretending ignorance. The Americans, faced with the – to you, impossible – task of balancing freedom of speech and open justice against libel, managed quite nicely with a rule of no prior restraint, combined with damages. The – it seems – entire failure of our judges to even *notice* this in a great common-law jurisdiction, and to set up a star chamber instead, is precisely the problem.

That is their fault, not Parliament’s.

It is we, the electors, who are ultimately responsible, since we choose the representitives who make the laws. We must be able to know, not just what the law says, but most importantly how the law is being applied, what effects it is having.

We have just found out and I at least am furious.

79 Robin Levett May 25, 2011 at 08:09

@Ben #77:

No time for a full answer, but:

(i) we are talking not about libel, but privacy;
(ii) the situation in the USA is not as cut and dried as you suggest; Tory v Cochran was in the event decided on facts rather than the broad issue of principle;
(iii) s12(3) of the HRA expressly contemplated, and set the test for, the use of injunctive relief that might limit freedom of expression. So this aspect is not actually judge-made law.

So I ask again; what aspect of judge-made privacy (not libel) law do you criticise, and why? Why are you “furious”?

80 Jim Nately May 25, 2011 at 08:50

@ Ben (#77)
I think you slightly misunderstand US law. The first amendment protects free speech. There is no comparable right to privacy. It is impossible, and contrary to the Convention, to transpose US values of free speech into the UK.

Considering US privacy/public figure jurisprudence, one of the most important cases is Hill v Time. Mr Hill was a citizen who had his home invaded by escaped convicts, and he and his family were held hostage. A few years later, a over-dramatised play was written about the events and, in light of some of the articles written, Mr Hill tried to sue Time magazine for invading his privacy and writing misleading articles.

Without examining all the facts, it is sufficient to note that the Supreme Court of the US found Mr Hill was a public figure for Sullivan purposes, and that consequently he didn’t have the right to be left alone to get on with his life—he was fair game. I don’t find that a particularly satisfactory outcome, when the victim of a very unpleasant crime is regarded as a public figure. Certainly, it would not be an acceptable outcome under Article 8.

Second, I think it is really important to understand why US privacy law is what it is, and particularly Sullivan. Again, I’m simplifying to the extreme, but it is sufficient to note that in the 60s there was a problem where national US papers were being sued for reporting on the civil rights movement. These cases occurred in state courts, with all-white (read, if you wish, per se racist!) juries, who awarded extraordinarily high damages.

Sullivan was an attempt to halt this trend, and a highly necessary one. The problem is since that case, the net of who is a public figure has been gradually expanded to include, for example, a university basketball coach. While the newspapers here might like you to believe US libel and privacy law is great, in reality it has substantial flaws.

In short, it is essential to realise that US law doesn’t balance free speech against any other right, as there are no countervailing rights.

81 Ben May 25, 2011 at 10:05

“In short, it is essential to realise that US law doesn’t balance free speech against any other right, as there are no countervailing rights”

You are just being silly. The right to be protected from libel is not guaranteed by the bill of rights but conferred by legislation and common law. That doesn’t mean that it isn’t a right or that it doesn’t have to be balanced.

The point, and glory, of common law is that *everything* is decided after hearing the facts of particular cases, not on general principle. That is because the world being as complicated as it is, it is impossible to judge what the consequences of a general principle will be, until you actually have an example in hand.

Once again, I cannot see how this:

“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”

… establishes any principle that the injunction may be kept secret or even the names of the parties.

Even after judgement the loser must retain the residual right to say “this is a bad result – these are the facts – surely the law is wrong”.

It is that star-chamber aspect which makes me furious.

That is all without even considering the chilling effect of “there is an injunction against anyone saying certain things about some matter but we cannot know what the matter is or what things we may not say, on pain of prison”. What a large shadow such an injunction casts!

* We must be able to know what the law requires of us
* We must be able to know how the law is being applied, since they are our laws and we are responsible for choosing the legislators.

I cannot understand why defenders of the star chamber don’t think those points are worth addressing.

82 David Stourton May 25, 2011 at 10:45

@Ben: when you were asked what you thought was wrong with the current law, your reply in post 77 suggested that you did not think judges should be granting any injunctions at all.

It was then pointed out to you (in post 78) that the HRA itself contemplates, and sets the test for, the granting of injunctions to restrict freedom of speech.

In post 80 you retreated from your suggestion that there should be no injunctions, and focussed on the secrecy of injunctions or the anonymisation of the parties.

As to these:
(i) injunctions which prohibit reporting of their existence (i.e. superinjunctions) are exceptionally rare – see Lord Neuberger’s report. The chances of the Courts granting one are minimal, and if they are granted at all (v. unlikely), it would only be for a very short period such as a few days. They are not really relevant to injunctions currently in the news – all of which (so far as I know) are not superinjunctions.
(ii) anonymisation of the parties is obviously necessary in many privacy cases if a public judgment is to be given explaining why an injunction has been granted. Otherwise the very purpose of the injunction would be frustrated by publication of the reason for granting it.

Public judgments with anonymised names do let you know how the law is being applied. The debate over the rights and wrongs of (for example) the CTB injunction is not assisted one iota by knowing who CTB is. You can read the judgment to see what injunciton was granted and why it was made.

My own view is that criticism of UK judges in this context is unfounded – they are indeed loyally doing what Parliament required them to do. Don’t forget also that Parliament required the UK judiciary to take account of ECHR rulings. UK judges therefore have no choice but to follow the ECHR’s jurisprudence, which has been developping – and will probably develop further.

There has essentially been a massive cop out by Parliament, which did not want the tricky business of itself working out the proper limits of a privacy law, and instead required the judges to do it instead (and to follow the ECHR while doing so).

The root of the current difficulties seems to me to be a lack of consensus as to what the substantive law of privacy should be. Many people simply don’t feel that (for example) a mistress should owe any duty to an adulterous husband to maintain the secrecy of their affair, or that the courts should involve themselves in such matters. The husband may hope that she will keep it under wraps, but it’s his bad luck (or bad judgment) if she doesn’t. That is a perfectly legitimate view, and one to which I tend myself, but it is not the law.

The problem is (i) that Parliament has abdicated its responsibiliy to decide what the law is, and consequently there is no democratic consensus or support for the current law as (properly) developped by the judges; (ii) Parliament is no longer free to revise the law as it might wish, without placing the UK in breach of its international obligations under the ECHR.

While I think the HRA has largely been beneficial, I do not think it appropriate for Parliament to out-source ultimate authority over such delicate matters as a privacy law, or prisoners’ rights to vote, or the state’s ability to deport terrorist suspects to a largely foreign supranational instituation (i.e. the ECHR).

My view therefore is that the UK should aim to leave the ECHR (yes, I know this would require negotation and agreement with the EU as well). I would not revoke the HRA, but would wish Parliament to have the ability to amend the substantive law it creates where Parliament is not satisfied with the direction the law has taken.

Sorry to take things somewhat off-topic, but the current debate leads in my view to quite significant and fundamental considerations.

83 Robin Levett May 25, 2011 at 12:34

David Stourton #81:

Until you took that sharp swerve to the right in the final couple of paragraphs, you voiced my thoughts precisely.

The reasons why I differ from you as to those paragraphs are that:

(i) We must remember that the ECHR itself was written by the British Civil Service as a distillation of the English Common Law and an ideal for a devastated Continent to follow;

(ii) The HRA itself repatriated decision-making in the field to the UK Courts. Those Courts are merely required to take account of ECtHR jurisprudence in determining issues under the Act, not slavishly follow them.

(iii) This Government, in its disgraceful attitude toward the decisions on both democratic rights for prisoners and de-registration for sex offenders, has demonstrated that it is quite capable of ignoring its treaty obligations when politically convenient.

84 Ben May 25, 2011 at 12:37

s12 says little more than “erm, sometimes it might be appropriate to grant an injunction”. It does not set any test whatsoever for when that might be.

” Otherwise the very purpose of the injunction would be frustrated by publication of the reason for granting it.

Yes that is so. It doesn’t follow that the injunction should be granted and anonymised. It could just as well be concluded that the chilling effect on free speech, as well as the effect on open justice and debate, override the interest in privacy, short of threat to life and limb.

That in my view is the correct balance – pre-publication injunctions to protect life and limb only. Short of that, damages can be the only remedy.

85 Robin Levett May 25, 2011 at 15:11

@Ben #83:

“That in my view is the correct balance – pre-publication injunctions to protect life and limb only. Short of that, damages can be the only remedy.”

So, given that the rich and powerful will see damages as mere chump change, you are opposed to the existence of any privacy law effective against them?

86 Ben May 25, 2011 at 16:08

“So, given that the rich and powerful will see damages as mere chump change, you are opposed to the existence of any privacy law effective against them?”

Firstly that’s not a given – I ain’t giving you that. Murdoch for example I am sure has a close eye on the profitability of his papers and damages will not have to be in seven figures to be effective.

Secondly, I want damages assessed by a jury. If the level of damages is enough to compensate, then it’s enough to compensate. If the defendant doesn’t care about the damages, that’s what triple damages are for in US libel law.

Thirdly, if you still think there is a problem with the approach, in practice rather than in the theoretical sense of George Soros wanting to publish pictures of you on the loo, then you really need to think of a plausible example.

87 txwikinger May 25, 2011 at 21:05

@Robin Levett

You have quote the ECHR:


“Article 8
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Sounds like a privacy law to me; how are the judges not loyally applying it?

What you seem to ignore is that the ECHR is about the protection of individual from the state, not other individuals (or legal persons). The ECHR does not lay any responsibilities on individuals, but only on the state. It restricts the state in its actions, not individuals.

This is also shown in the second paragraph, clearly referring to public authorities (i.e. the state, municipalities, police etc.).

Secondly, the privacy stated in the first paragraph does not extend to public space. It rather states the principle that public authorities are not allowed to just enter your home and search it. Usually a warrant by the judiciary is necessary.

I find it very dangerous to mix up law that is targeting powerful states with laws that regulated activities between individuals (like libel laws). It reduces the importance of states (with lots of power) of the responsibilities towards individuals in comparison with individuals relations to each other.

88 txwikinger May 25, 2011 at 21:32

I think another point that is not discussed is what falls under privacy and what does not.

Marriage is clearly not a private issue. You need to obtain a licence, an announcement is made about the upcoming wedding etc. In fact a marriage is a publicly entered contract.

So how far could injunctions now go if someone breaks such a contract. (Some would say adultery might be a breach to this contract). Could someone obtain an injunction with the goal to prevent their spouse to ever obtain the knowledge of such a breach?

Similarly, since the marriage was based on a public contract in the first place, does society that has sanctions such a contract with certain obligation and privileges a right to hear about the breaches of such contracts?

As I said in an earlier post. Gossiping has always be a part of society. Total privacy never existed. When someone in unknown, most of society is not interested, when someone is a celebrity and earns money due to the fame, it creates the situation that more people are interested in the “gossip”. Is this really a breach of privacy?

What is the real purpose of such injunctions. Also, a thing to remember. One of the first injunctions (was it even the first one?) that was raised in Parliament, was the one about the company that dumped waste in Africa (Not sure if the injunction still exists, but since newspapers report about it, I think not). Should such injunctions really exists?

89 Robin Levett May 25, 2011 at 22:28

@txwikinger #88:

“What you seem to ignore is that the ECHR is about the protection of individual from the state, not other individuals (or legal persons). The ECHR does not lay any responsibilities on individuals, but only on the state. It restricts the state in its actions, not individuals.”

Yabbut. It is settled law that a state is failing in its duty to protect the rights in the Convention if it fails to provide any effective redress to any citizen who has had those rights infringed by another, whether a state actor or another. So a state is in breach of Article 2 if it fails either to outlaw murder or to provide an effective means of detecting and punishing that crime. Similarly, a state is in breach of article 8 if its legal systems fail to act so as to protect the rights of privacy, family life etc.

So no, I don’t ignore the law – I am aware of its ramifications.

@ditto #89:

“One of the first injunctions (was it even the first one?) that was raised in Parliament, was the one about the company that dumped waste in Africa (Not sure if the injunction still exists, but since newspapers report about it, I think not). Should such injunctions really exists?”

The Trafigura case? I can see no problem whatsoever with that injunction, which preserved rights recognised for centuries by the means recognised for centuries. It is completely irrelevant to the issue of privacy, much though many seek to conflate them.

90 dw May 25, 2011 at 22:35

@Ben #83:

“That in my view is the correct balance – pre-publication injunctions to protect life and limb only. Short of that, damages can be the only remedy.”

So, given that the rich and powerful will see damages as mere chump change, you are opposed to the existence of any privacy law effective against them?

That’s what punitive damages are for.

91 Sceptics 'R Us May 26, 2011 at 00:03

txwikinger May 25, 2011 at 21:05
‘What you seem to ignore is that the ECHR is about the protection of individual from the state, not other individuals (or legal persons). ‘

I’m no lawyer but even I know that the EHCR articles are deemed to place obligations on the state to ensure that local laws will support their application. I see that Robin Levett has done an admirable technical summary

And if I know that, the tabloids certainly do too. And they hate it. Hence their support for useful idiots in the HoC and on Twitter to try to undermine the law

Still, the Keyboard Army cannon fodder is in for a bit of a shock if they think that they are safe under American idealism, as the reports from the e-G8 seem to show.

http://www.bbc.co.uk/news/technology-13546847

Twitter knows where its commercial interests are. And their users just haven’t read the Ts & Cs properly

I see that Jimmy Wales of Wikipedia is reported to be leading the leading the charge for absolutist Net freedom, but the the big difference from him and the others is that he is not trying to seriously monetise what he is doing. Those thinking that his views will prevail are kidding themselves.

92 Sceptics 'R Us May 26, 2011 at 00:24

BTW, txwikinger, society sanctions your having a birth certificate, a public document that as far as I can see, I could obtain access to.

Would you feel happy with the notion that just because that is public, I might use the information from it to go about gossiping to all and sundry, and maybe even worse have some tabloid drag through it, that you were, just suppose and for the sake of example only, born out of wedlock?

Just because something is available publicly doesn’t mean that it is in the public interest to have that spread about willy nilly for public titillation

93 Arty Smokes May 26, 2011 at 01:02

@Sceptics ‘R Us

Facts are always in the public interest. Knowledge is power. Privacy is anti-truth. Show me someone who wants tougher privacy laws, and I’ll show you someone with something to hide.

94 Sceptics 'R Us May 26, 2011 at 02:44

@Arty Smokes
‘Show me someone who wants tougher privacy laws, and I’ll show you someone with something to hide’

I think we need tougher privacy laws. I should like them to be able to be exercised by everyone. I want them because I have seen too many other people exploited and potentially seriously hurt and their lives turned upside down by avaricious journalists who seem to have no moral scruples as to how they earn their money.

Someone famous explained it all very clearly, a long time ago, before he became that famous.

http://www.independent.co.uk/opinion/invasion-of-the-prying-press-1335838.html

As for having something to hide, you don’t even need to think you have. You don’t need to have done anything wrong at all, or anything illegal. You can be living a normal quiet life and then be gone over by the media merely because they can and you can be.

The Press Complaints Commission’s Guide to Editors makes it clear that articles about individuals should be in the public interest. Even taking account of the ‘get out’ exception clauses provided, one might be forgiven for thinking that a little sophistry might be needed to determine the following articles as qualifying. I’d be fairly sure up till this point, these people thought that they had nothing to hide either. so:

for merely being mentioned in someone else’s stupid email

http://www.dailymail.co.uk/news/article-1372524/Girl-racy-email-landed-ex-public-schoolboys-hot-water.html

For some parent’s completely off the wall actions – read the venue owner’s BTL comment – it’s priceless

http://www.dailymail.co.uk/news/article-1389292/Disgrace-drinking-pole-dancing-primary-school-teachers-published-pictures-Facebook.html

And look at Herisiarch’s Dungeon blog to see how this one came to pass

http://www.dailymail.co.uk/news/article-1385953/Primary-school-teacher-led-double-life-kinky-sex-dominatrix-free-continue-working-children.html

You don’t have to have anything to hide to want a privacy law. You just have to want to see other people treated decently. That’s the Golden rule isn’t it? – do unto others as you would have done to you, if you were in the same boat

Or are you just happy that, or maybe even enjoy watching, people being humiliated for no real good reason whatsoever?

Alternatively, you are a troll and I have fallen for the bait. If you are, watch out for Big Billy Goat Gruff. One day he might get you 🙂

95 dw May 26, 2011 at 06:49

@Robin Levett:
The Trafigura case? I can see no problem whatsoever with that injunction

You think it’s just fine for a corporation to suppress an embarrassing leaked document, one that was relevant to that corporation’s malfeasance in the sickness and death of 100,000 Africans?

I am absolutely astonished. Thank God that, because of the internet, people with views like yours can no longer effectively suppress information.

96 Robin Levett May 26, 2011 at 08:09

@dw #94:

“You think it’s just fine for a corporation to suppress an embarrassing leaked document, one that was relevant to that corporation’s malfeasance in the sickness and death of 100,000 Africans?”

Let’s get one thing straight from the start; the corporation involved was *not* involved in the sickness and death of 100,000 Africans. The independent report commissioned jointly by the Claimants and Defendants made that very clear.

The report was a draft prepared for litigation purposes on the basis of a number of assumptions which on investigation didn’t prove out; as was shown when the experts involved finished their investigations.

Dead straight I find it absolutely OK that the litigant involved was allowed to prevent circulation of the stolen document and allowed to prepare its case in the confidential circumstances required by any rational system of law. The very fact that you made the claim about sickness and death of 100,000 Africans, ignoring the eventual outcome, rather neatly makes the point for the necessity of this.

That Trafigura appears to have behaved appallingly is one thing; but that is beside the point since that behaviour, by the grace of the FSM, turned out not to have had the consequences initially claimed for it.

97 Robin Levett May 26, 2011 at 08:26

@dw contd:

Just to bring it home a little; what’s your position on allowing the police, when executing a search warrant on a (defence) solicitor’s office, to seize, retain and publicise the contents of active criminal defence case files discovered in that search?

It is exactly the same principle as underlies the Trafigura injunction.

98 ObiterJ May 26, 2011 at 10:42

We began with Head of Legal stating – “There’s nothing wrong with the privacy law Parliament enacted in the Human Rights Act 1998, and which the judges are loyally applying – ..”

Did Parliament enact a privacy law? Well Parliament certainly enabled one to develop by enacting the HRA 98 and it was recognised that it probably would. Indeed, as Robin Levett pointed out in one of his many replies on this thread, Lord Irvine even considered it better to allow the judges to develop it.

In fact, in my view, it would have been preferable for Parliament to have enacted a more detailed framework. That is supposedly what they are there to do and it is something which they might end up having to do anyway.

There are serious and perfectly legitimate questions about the detail of the law which the judges have actually developed. This is actually too important to be left entirely to lawyers to solve. Free speech is at the heart of democracy and the balance certainly seems to have tilted too far away from freedom of speech.

Generally speaking, I am not personally bothered at all about who is having an affair with who though even here there might have to be exceptions if revelation of the affair is inevitable in order to reveal other iniquity or misuse of power. Consider the Blunkett /Visa situation.

Unfortunately, the judges have permitted injunctions to be used to cover up serious misconduct (e.g. Trafigura) and this is unacceptable.

I am also struck by criticism of the composition of Lord Neuberger’s committee with, so it appears, some members having a considerable financial interest in the outcome. More attention needs to be paid by the judiciary to this sort of thing. People cannot be judge in their own cause.

The other legitimate criticism of the law in this area is that it is rich man’s justice. Parliament might consider taking a serious look at some of the fees charged for these cases.

Lawyers must not blind themselves to the serious public concerns which this matter has given rise to.

99 Robin Levett May 26, 2011 at 11:12

@ObiterJ #97:

“…as Robin Levett pointed out in one of his many replies on this thread…”

Oops.

“Unfortunately, the judges have permitted injunctions to be used to cover up serious misconduct (e.g. Trafigura) and this is unacceptable.”

Trafigura was not a privacy case (it would have been decided the same way at any time during the last few centuries); the injunction did not cover up serious misconduct; and the alternative (forcing open-book litigation) is certainly unacceptable.

Lawyers are not blind to the serious public concerns that have arisen – but a significant proportion of that concern is based on precisely the kind of misconception revealed by this paragraph.

“I am also struck by criticism of the composition of Lord Neuberger’s committee with, so it appears, some members having a considerable financial interest in the outcome. ”

I hesitate to ask, but are you referring to the rich and famous or the rich and powerful here?

100 Robin Levett May 26, 2011 at 11:19

@ObiterJ contd:

[Checks membership of Neuberger committee]

I was right; it was the rich and powerful – both the Grauniad and the Mirror were represented. Has the Mail been whingeing about it?

101 Robin Levett May 26, 2011 at 12:12

@ObiterJ yet again:

(Googles) – yes, the Mail has been whingeing – oddly, it doesn’t mention the presence on the committee of two heads of legal from Newspaper groups – including the chair of the Media Lawyers Association.

102 dw May 26, 2011 at 15:04

@Robin Levett #96:

The [suppressed Trafigura] report was a draft prepared for litigation purposes on the basis of a number of assumptions which on investigation didn’t prove out; as was shown when the experts involved finished their investigations.

So what? If it’s inaccurate, why does that justify so-opting the coercive power of the state to suppress it? Why is suppression your default remedy for anything that is not perfect or 100% accurate?

Just to bring it home a little; what’s your position on allowing the police, when executing a search warrant on a (defence) solicitor’s office, to seize, retain and publicise the contents of active criminal defence case files discovered in that search?

I would dismiss the criminal case against the defendant for police misconduct. I would NOT put anyone who publishes the information in jail.

There is a certain philosophy that sees very little cost in suppression of information, that indeed sees state-enforced suppression of information as the default remedy for a wide array of ills. It is very unfortunate that this philosophy appears to have taken such strong hold over England’s legal establishment.

103 Anonymous May 26, 2011 at 15:12

@Robin Levett: #99:

Trafigura was not a privacy case (it would have been decided the same way at any time during the last few centuries); the injunction did not cover up serious misconduct; and the alternative (forcing open-book litigation) is certainly unacceptable.

Yet suppressing information is acceptable?

104 Arty Smokes May 26, 2011 at 15:18

@Sceptics ‘R Us

There’s something deeply unpleasant about tabloid journalists trying to humiliate people, but there’s a simple way to protect yourself from having potentially embarrassing stories about you appearing in the press: Don’t do things you’d be ashamed of if they were publicised.
Don’t live a “double life”. Just, you know, be honest! If you feel guilty about your “extracurricular activities” then you should probably not be doing them.
It seems that the general public didn’t really care about teachers getting drunk or working as a dominatrix. And why should they? Nothing beyond the pale occurred. Because of that, no one’s life was ruined by the truth coming out. There was no “humiliation”. If anything, the Daily Mail was the party with egg on its face for printing a non-story.

The only cases I’ve heard of in which someone tried to prevent the press from printing the truth are the ones in which the party involved felt guilty about their behaviour. In every case, they felt guilty because they WERE guilty.

105 ObiterJ May 26, 2011 at 17:06

@ Robin Levett #99

Yes, I have to accept that the Trafigura injunction concerned the Minton report into an allegation of toxic waste / Ivory Coast. As far as the English courts are concerned this allegation was not proved. I believe that things might have been rather different in Holland:

http://www.bbc.co.uk/news/world-africa-10735255

I’m not sure whether that decision has been appealed – do you know and, if so, the outcome?

My comment in #98 was that I was struck by criticism in the media about the make up of Lord Neuberger’s committee. The media picked up on the make up on the basis that some members were from solicitor’ firms working in this field. I merely made the point that, in my opinion, the judges should be a little more careful about how they form these committees since they can leave themselves open to this type of criticism.

good piece here by Joshua Rozenberg:

http://www.lawgazette.co.uk/opinion/joshua-rozenberg/lord-chief-justice-allowed-himself-be-labelled-039enemy-free-speech039

Thanks for your comments in reply to me – much appreciated.

106 Sceptics 'R Us May 26, 2011 at 17:57

@ Arty Smokes

The ‘nothing to hide, nothing to fear’ argument just doesn’t wash any more, I’m afraid. You can’t live your life not doing anything that someone else might disapprove of, or feel guilty because they might.

St Paul wrestled with the same problem in writing to the Christians at Rome. he stated that basically you should try as far as possible not to offend someone else, if their conscience as to what you had no problem with, in terms of the associated rights or wrongs, was weaker than your own. However, the bottom line was that at some point you had to draw a line, as you really couldn’t let your freedom be controlled by everyone else’s foibles. A sort of early version of no-one having an absolute right not to be offended, really

You can be perfectly happy, unashamedly doing something quite legal, but be torn to shreds in public by those who choose not to approve. And they can make life pretty unpleasant. You have everything to fear when they are allowed to do that to you from a position of power which you cannot match

Maybe you didn’t read all the detail but the ‘dominatrix’ was a teacher. She was possibly, albeit not conclusively proven, set up in a sordid deal with a newspaper, one whose staff were roundly condemned in court on what may be a related matter. Anyway, she ended up out of her job and it all culminated in a disciplinary hearing of the General Teaching Council. I’m not sure why you concluded otherwise, but I don’t think that too many people would think that her life wasn’t in some way ruined as a result

You really don’t have to be guilty of anything to want to see the press prevented from doing damage to people by not publishing such prurient stuff.

It is even more galling to see it appear in articles where they seem to even lack the integrity to observe their own professional standards as to the definition of what ‘in the public interest’ means

107 Robin Levett May 26, 2011 at 18:07

@dw #102:

“So what? If it’s inaccurate, why does that justify so-opting the coercive power of the state to suppress it? Why is suppression your default remedy for anything that is not perfect or 100% accurate?”

The important words in the sentence were “draft prepared for litigation purposes”; for the issue of principle, it is irrelevant whether the report was totally off-the wall or 100% accurate. *Any* public interest in its disclosure was overridden by the public interest in the proper justice.

If however the report was prepared “on the basis of a number of assumptions which on investigation didn’t prove out” it must in any event reduce the public interest in its disclosure, don’t you think?

“I would dismiss the criminal case against the defendant for police misconduct. I would NOT put anyone who publishes the information in jail.”

Do you think that the police should be allowed, on and following execution of “a search warrant on a (defence) solicitor’s office, to seize, retain and publicise the contents of active criminal defence case files discovered in that search?”

“There is a certain philosophy that sees very little cost in suppression of information, that indeed sees state-enforced suppression of information as the default remedy for a wide array of ills.”

Itemise this “wide array of ills”, if you would, please.

@Anonymous #103:

“Yet suppressing information is acceptable?”

To prevent injustice – yes. Isn’t that answer an obvious one?

108 Robin Levett May 26, 2011 at 18:32

@ObiterJ #105:

“I’m not sure whether [the Dutch] decision has been appealed – do you know and, if so, the outcome?”

I don’t I’m afraid. What I would say, however, is that the results in it and in the English court case were not in conflict. The Dutch (criminal) case was over whether Trafigura had illegally imported and exported toxic waste into and out of Amsterdam. That wasn’t an issue in the English (civil) case, where the major question of what damage, if any, it had caused to the local population. In the event, while Trafigura maintained that it had played by the book and that it was the entity to which it had passed the waste was at fault, the case was settled at £950 per claimant when the jointly instructed independent experts came back and said that, “at worst, the slops could have caused a range of short-term, low-level flu-like symptoms and anxiety” (as reported by LegalWeek.com).

“My comment in #98 was that I was struck by criticism in the media about the make up of Lord Neuberger’s committee. The media picked up on the make up on the basis that some members were from solicitor’ firms working in this field. I merely made the point that, in my opinion, the judges should be a little more careful about how they form these committees since they can leave themselves open to this type of criticism.”

The problem is that the committee needed people knowledegable about the legal issues – which of necessity means lawyers in the field. The Rozenberg story has no quibble with the report. What is particularly interesting however is how slanted the Mail story was. It is true that representatives of Schilling and Carter-Ruck were on the committee as they claimed; but there is nary a mention of the presence of Marcus Partington and Gillian Phillips, heads of legal respectively at Trinity Mirror and Guardian Newspapers on that same committee. It is almost as if the Mail was trying to represent a pretty balanced committee as a stitch-up, isn’t it…

I’m pleased we can have a (reasonably) civilised conversation; my apologies for earlier snark.

109 Robin Levett May 26, 2011 at 18:33

Correction to my #107:

“*Any* public interest in its disclosure was overridden by the public interest in the proper justice.”

should read:

“*Any* public interest in its disclosure was overridden by the public interest in the proper adminstration of justice.”

110 ObiterJ May 26, 2011 at 19:11

@ Robin Levett – re #108 – thank you and no problem. I have enjoyed this. I agree re the committee including press Reps. Of course, they would not criticise that. Think we might all do with a “time out” now from injunctions !! I will reflect on all of this and may try to do a balanced item for my blog in a while. Thanks again.

111 dw May 26, 2011 at 20:26

@Robin Levett #108:

The important words in the sentence were “draft prepared for litigation purposes”; for the issue of principle, it is irrelevant whether the report was totally off-the wall or 100% accurate. *Any* public interest in its disclosure was overridden by the public interest in the proper justice.

Why, exactly? How does disclosure of a “draft prepared for litigation purposes” prevent justice?

“There is a certain philosophy that sees very little cost in suppression of information, that indeed sees state-enforced suppression of information as the default remedy for a wide array of ills.”

Itemise this “wide array of ills”, if you would, please.

You would know better than me, but according to the commenters on this thread, they would appear to include

* footballers’ wives finding out that their husbands are committing adultery

* the public finding out that the chief executive of a bank , which subsequently required a multi-million pound bailout, was having an affair with a colleague.

112 Robin Levett May 26, 2011 at 22:02

@dw #111:

“Why, exactly? How does disclosure of a “draft prepared for litigation purposes” prevent justice?”

In exactly the same way that seizure, retention and publication of live criminal defence files by the police does.

“You would know better than me, but according to the commenters on this thread, they would appear to include

* footballers’ wives finding out that their husbands are committing adultery

* the public finding out that the chief executive of a bank , which subsequently required a multi-million pound bailout, was having an affair with a colleague.”

So a “wide” variety of ills seems to be pretty narrow, limited to disclosure of sexual misconduct. Shouldn’t you have added “drawing the sting of what was credibly described as an attempt at blackmail”, for balance?

113 dw May 27, 2011 at 02:02

“Why, exactly? How does disclosure of a “draft prepared for litigation purposes” prevent justice?”

In exactly the same way that seizure, retention and publication of live criminal defence files by the police does.

… which is??? Humour me.

114 Robin Levett May 27, 2011 at 07:57

@dw #113:

“In exactly the same way that seizure, retention and publication of live criminal defence files by the police does.

“… which is??? Humour me.”

Perhaps you can articulate why you think that in the police case it interferes with the proper administration of justice – as you claim to do – and why the position differs in civil claims?

For my part: for all the reasons justifying litigation privilege and lawyer/client confidentiality. Go and do some work .

115 Robin Levett May 27, 2011 at 08:02

Has anyone else been struck by the irony that all those in this thread taking a hardline version of the Richard Stallman position that “all generally useful information should be free” are posting pseudonymously and anonymously?

Take Arty Smokes, who claims that “‘Show me someone who wants tougher privacy laws, and I’ll show you someone with something to hide’”?

Or is no-one interested any more?

116 Sceptics 'R Us May 27, 2011 at 09:34

@ Robin Levett

You do have a point about anon and pseudonymity but to be fair to Mr Smokes, there is a differentiation that can reasonably be made between the discussion of technical matters and the voicing of opinion

From the content of your comments and those of others posting in their own names, you would appear to be members of the legal profession, and qualified to deal in detail with specific points arising in the law as they apply to this case. Your name and reputation will add weight to those to readers with direct knowledge of your experience and the validity of the points made

In my professional capacity, I would use my own name on any technical on that same basis

The difference that I apply here and in other articles is that in those I am freeing a personal opinion aced on, for want of immediately better descriptions, ‘look and feel’, ‘gut instinct’ or as some would probably see it, personal prejudice

The difficulty arises that one’s colleagues, friends and employer may not share those and may even disapprove. In the present environment, the increasing lack of tolerance in some of those regards, and this can be particularly relevant when you are employed in the public sector, means that there is both greater freedom and safety to contribute under a pseudonym. The introduction of any form or registered ID requirement for Internet access, of the type being considered in some quarters, will do more to chill Internet freedom than any other control measure I can think of

It is possible that Mr Smokes might have similar concerns and hence his doing so might not be as reprehensible as it could initially appear.

Alternatively, of course, he could just be warning readers to treat his comments with some caution as his smoking might at times affect his cognitive abilities. 🙂

As even handedly as ever

Sceptic

117 Arty Smokes May 27, 2011 at 16:25

@ Robin Levett.

I’m not anonymous. I’m not hiding. You can google me. You can easily find photos and videos of me doing things that the Daily Mail would probably find reprehensible. I’m not exactly scared of being “outed” by anyone, when I’ve already outed myself.

118 dw May 27, 2011 at 17:35

@Robin Levett #114:

I note that you refuse to give an explicit answer my question, which was to justify why publication of a document made by lawyers for a party to a civil case is so awful that it justifies imprisonment, and seizure of assets, of anyone making it public.

It’s no surprise that those who are currently lawyers in England and Wales tend to favour the current set-up. Those people have both invested a lot of time and resources into understanding and justifying the current way of doing things, and also have the potential (depending on their field of law) of reaping the financial rewards from legal work that is made available by it.

119 Sceptics 'R Us May 27, 2011 at 18:49

@ Arty

Well, that makes it easier to see why the views you expressed above make a great deal more sense, at least insofar as they apply to you personally. 🙂

But on the other hand, I trust that you can see why, just because you are in the privileged position of being able to do so, ie ‘out’ yourself in respect of whatever you feel that counts as ‘outing’, that doesn’t invalidate the need to provide some protection for others who aren’t.

120 Robin Levett May 28, 2011 at 18:03

@dw #118:

“I note that you refuse to give an explicit answer my question, which was to justify why publication of a document made by lawyers for a party to a civil case is so awful that it justifies imprisonment, and seizure of assets, of anyone making it public.”

That’s partly untrue, and partly because I’m weary of you dancing around my questions.

Untrue, because it is continued deliberate flouting of a Court order which justifies imprisonment (“seizure of assets”?); it is the litigation privilege which justifies the naming of the Court order in the first place.

Weariness, because you’ve already agreed that the police shouldn’t be allowed access to defence papers, and I would like you to articulate your reasons for that, because I am at a loss to gues what those reasons may be if they don’t apply to the the position under civil law.

“It’s no surprise that those who are currently lawyers in England and Wales tend to favour the current set-up. Those people have both invested a lot of time and resources into understanding and justifying the current way of doing things, and also have the potential (depending on their field of law) of reaping the financial rewards from legal work that is made available by it.”

And it’s no surprise that the rich and powerful want to prevent any potential interference with their cash flow as a result of an effective privacy law. The rent-seeking argument cuts both ways – and at least the lawyers can point to a reasoned justification for the use of injunctions – namely that any privacy law unprotected by injunctions will become simply a price-list.

121 Ben June 2, 2011 at 09:08

We are all weary of this, and I certainly don’t blame you for not reading all of the comments – I haven’t myself.

However your point about “any privacy law unprotected by injunctions will become simply a price-list” has been addressed, by Richard in comment #56, myself in comment #86 and dw in comment #90.

You haven’t responded. As I say, I don’t blame you for that, but I do not want readers to have the impression that the point was not addressed.

You also haven’t addressed the other points:

* It’s not always possible to know what is in the public interest without having the public debate first. Injunctions require the Judge to pre-judge the outcome, at risk to democracy. Damages do not – they require he who would disclose the information to do so, at their own risk.

* It’s not acceptable in a democracy where the legislature are responsible for making the law, that they may not know how the law is being applied. To do that they need to know what is enjoined – an anonymous injunction raises this issue just as much as a “super” injunction. How can they know whether the contours of privacy are appropriately drawn, unless they can see what it means in practice, in particular cases? A pre-publication injunction frustrates this need, so frustrates legislators in their duty, so is incompatible with democracy.

* It’s not acceptable in a democracy where the electors are responsible for choosing the legislature, that the electors may not do the same, and for the same reasons.

* Anonymous injunctions have a chilling effect on free speech. If all we know is that a celebrity in a particular occupation has some injunction against revealing some information, and we have information about a celebrity in that occupation we believe to be in the public interest, can we reveal it? Either the injunction will have no effect, or it will have a chilling effect on free speech far beyond the matter at hand. Damages do not exhibit this problem. (Neither do superinjunctions, which can only be enforced against those who are aware of them – in this respect an anonymous injunction is worse).

122 ukliberty June 2, 2011 at 11:04

Ben,

It’s not always possible to know what is in the public interest without having the public debate first. Injunctions require the Judge to pre-judge the outcome, at risk to democracy. Damages do not – they require he who would disclose the information to do so, at their own risk.

The sticking point is that publication of the information destroys the person’s privacy. What good are damages after the secret is out? These people are prepared to spend upwards of £60k (reportedly) to keep the information secret (or as Bill Bailey put it the other day, to become even more famous). If you place no or little weight on privacy relative to freedom of expression then of course you and Robin (and others) will talk at cross purposes.

(and worth nothing that they aren’t all famous or rich. See paras 37-38 [2011] EWHC 1308 (QB).)

I must say, there is some irony here, in that in at least a few of these cases the papers aren’t even advancing a public interest argument…

* It’s not acceptable in a democracy where the legislature are responsible for making the law, that they may not know how the law is being applied. To do that they need to know what is enjoined – an anonymous injunction raises this issue just as much as a “super” injunction. How can they know whether the contours of privacy are appropriately drawn, unless they can see what it means in practice, in particular cases?

This seems a bit weak. Parliament only has to inquire – Neuberger’s committee recently published a report into injuntions, as I’m sure you’re aware. And there is nothing, as far as I know, to stop people talking about the issues and principles absent identifying information.

Hemming, for example, could have said the other day, “With about 75,000 people having named a footballer who obtained an injunction to prevent information about himself appearing in the media, it is obviously impracticable to imprison them all, and with reports that Giles Coren also faces imprisonment,” instead of saying the footballer’s name. Being prohibited from saying the name does not prohibit discussion. Being prohibited from publicising identifying information and details about sexual encounters doesn’t prohibit discussion.

Anonymous injunctions have a chilling effect on free speech. If all we know is that a celebrity in a particular occupation has some injunction against revealing some information, and we have information about a celebrity in that occupation we believe to be in the public interest, can we reveal it?

Seriously, have any of the topics of the injunctions we know of been of a kind that people would be prepared to go to jail over? You know, that kind of seriousness of a secret that simply must be revealed – something worth whistleblowing and accepting the consequences? I think the lack of such whistleblowing speaks for itself. It seems to me it is all about who had sex with whom and/or the person obtaining an injunction might be a hypocrite (I’m not sure if it is in the public interest to know if such a person is a hypocrite but I admit to a little schadenfreude when they are revealed as such).

The only thing I’m uncomfortable about is the allegation or suggestion of blackmail absent a proper investigation and hearing both sides of the case.

123 Robin Levett June 2, 2011 at 13:01

@Ben #121:

“However your point about “any privacy law unprotected by injunctions will become simply a price-list” has been addressed, by Richard in comment #56…”

I take it you mean:

“Then make the damages punitive. That is the answer, if you believe that there is a right to privacy in this case. Personally, I don’t. Rights to privacy should be enumerated, in my opinion. Getting a injunction against someone else publishing something they know is absurd and unworkable. The village gossip knows that.”

Putting the price up doesn’t stop it being a price list.

“…myself in comment #86…”

This (?):

“Firstly that’s not a given – I ain’t giving you that. Murdoch for example I am sure has a close eye on the profitability of his papers and damages will not have to be in seven figures to be effective. ”

Really? What makes you think that? If he can bring down a busienss rival, or a legislator who wants to introduce legislation affecting him directly, he’s going to hold back because at some indeterminate time in the future he may have to pay out a few grand?

Newspapers still print libels; damages don’t prevent them from doing so. If you are going to claim that the prospect of paying damages will prevent newspapers printing a juicy bit of tittletattle that serves their purposes, either in terms of profit or of power, I’d like to see your evidence for it.

“…and dw in comment #90….”

This:

“That’s what punitive damages are for.”

Same point as above; the fact that Harrods charge more than Lidl doesn’t stop their price list being a price list.

Punitive damages, more generally, are to punish after the event egregious wrongs the repetition of which the Court seeks to discourage. They are of course actions which, had the Court got there first, it would have enjoined.

“It’s not always possible to know what is in the public interest without having the public debate first…”

I’m sorry, but this is ridiculous. Tests of “public interest” crop up all over the place. They really aren’t rocket science. Specifically, the question of whether it is in the public interest to publish material relating to the private life of someone in the news is one routinely considered by the Courts in defamation cases. Most knots have been teased out.

“Injunctions require the Judge to pre-judge the outcome, at risk to democracy.”

No, they do not. All ex parte injunctions have a return date when the injunctee has the opportunity to argue against the continuation of the injunction. What is interesting is that the newspapers have rarely been arguing public interst arguments on the return dates.

Again, interim injunctions hold only until trial; when the issues are fully debated by those actually involved.

As for thr e risk to democracy, it is fundamentally anti-democratic, for example, to place the power of deciding whether to destroy a politician for reasons irrelevant to his integrity or his ability to do his job, in the hands of an unelected plutarch who happens to own a newspaper.

“Damages do not – they require he who would disclose the information to do so, at their own risk.”

And do not prevent him from doing so even where he is wrong to do so, and in doing so destroys that which the law is supposed to protect, namely the privacy of the person seeking the injunction.

“It’s not acceptable in a democracy where the legislature are responsible for making the law, that they may not know how the law is being applied. To do that they need to know what is enjoined – an anonymous injunction raises this issue just as much as a “super” injunction. How can they know whether the contours of privacy are appropriately drawn, unless they can see what it means in practice…”

Fine, that’s what the Law Commission, Royal Commissions, and even Committees set up by Supreme Court Justices are for…

“…in particular cases”

Suitably anonymised, again fine.

“A pre-publication injunction frustrates this need, so frustrates legislators in their duty, so is incompatible with democracy.”

Assertion not so much without, as contrary to, the evidence. See Lord Neuberger’s committee’s report.

“It’s not acceptable in a democracy where the electors are responsible for choosing the legislature, that the electors may not do the same, and for the same reasons.”

See above. Telling the electorate what is being kept from them in the name of privacy makes the right to privacy rather tenuous, don’t you think?

“Anonymous injunctions have a chilling effect on free speech. If all we know is that a celebrity in a particular occupation has some injunction against revealing some information, and we have information about a celebrity in that occupation we believe to be in the public interest, can we reveal it?”

If you know the superinjunction exists and the celebrity’s occupation, then someone has already breached the injunction…

But more seriously, at your own risk in terms of independent proceedings, yes. You can hardly be in contempt of an order of whose terms you know nothing. My own view is that the Twitter users who were just speculating as to the identity of the footballer involved in the Imogen Thomas case were not in contempt; that of course is the whole purpose of the secrecy of the injunction, to prevent speculation that could damage both involved and uninvolved parties.

“Either the injunction will have no effect, or it will have a chilling effect on free speech far beyond the matter at hand. Damages do not exhibit this problem.”

Of course not; because damages do not effectively protect privacy… If damages did have the effect of protecting privacy, they would chill free speech.

124 Ben June 2, 2011 at 14:40

“Putting the price up doesn’t stop it being a price list.”

That argument cuts both ways. The penalty for contempt of court is a price. If you are arguing for injunctions, you are just arguing for a higher price – you cannot imprison the News of the World.

To me it is obvious that if reckless breaches of privacy carry punitive damages, that is just as much a protection as a fine. In terms of “the News of the Screws” making a money-making enterprise out of invasions of privacy, it is OBVIOUSLY sufficient, because punitive damages will be BY DEFINITION high enough to make it uneconomic to do so, and then some.

Your argument that “what if they were so rich and didn’t care about the money” is so marginal (George Soros publishing pictures of you on the toilet, then laughing as he pays you a million per photo) that it cannot be right to make a rule on that basis.

Your problem of “the price list” is theoretical. Give it up.



Assertion not so much without, as contrary to, the evidence. See Lord Neuberger’s committee’s report.

I did. It said in so many words that “Parliamentary privilege does not extend as a general rule to communications between a constituent and his or her MP”. I.e. MPs may not know any more than we may, and therefore cannot know how the law operates in practice.

To see how this works (or rather doesn’t) see 5.11 in that report, where MPs who were seeking to know, were not able to find out whether there were any proceedings in a case or not.

But you think the ability of the legislature to know how the law works in practice is adequate.


Fine, that’s what the Law Commission, Royal Commissions, and even Committees set up by Supreme Court Justices are for…

It is not sufficient for the great and good to see all the facts – and nobody is saying they actually would – because they are responsible to us and we must hold them to account. Are you really saying that when a committee of judges says “We have looked into it and everything is fine.” we should just have to take their words for it?



“…in particular cases”

Suitably anonymised, again fine.

If it is anonymised, we cannot know whether we have all the facts. What has been taken into account, and what has not? What happened afterwards that may have shown the decision to be unwise? If we do not know who the parties are how can we judge how it plays out?

(You also confused anonymous and super injunctions in the middle there, which spoils your argument somewhat)


“Of course not; because damages do not effectively protect privacy… If damages did have the effect of protecting privacy, they would chill free speech.”

I see you are proud to be ignorant of the jurisprundence of the largest English speaking country in the world. Try reading a bit- it’s close enough to the Queen’s English to give it a go, and the SCOTUS rulings are by and large a hell of a lot better written than our Lords’.

Damages by definition COMPENSATE, so the injustice is made whole. This does not unring the bell but to think it does not do justice is to discount the whole field of tort law. Punitive damages are only available for reckless publication, so careful, considered speech is not deterred.

I think we have effectively covered the points now.

* You don’t think damages, even punitive damages, could possibly effectively deter breaches of privacy, but a fine will.

I think that is an idiotic opinion.

* You don’t see anything wrong with the courts operating in secret, so nobody can have any effective understanding of what the law actually is in practice.

I think that is an idiotic opinion.

Judges are not Gods, or even Saints. They deal in law, not justice, and we need to know what the law is, so we know when we need to change the law.

* You think it is fine to cut a swathe through free speech, democracy and the rule of law, to protect the new and unformed right to privacy.

I think that is a wicked opinion.

“Publicity is the very soul of justice… It keeps the judge himself, while trying, on trial.” Bentham (1790)

125 Robin Levett June 2, 2011 at 22:24

@Ben #124:

“…you cannot imprison the News of the World.”

No, but I can imprison the editor, owner, or anyone else who contumeliously flouts the Court’s orders.

“I see you are proud to be ignorant of the jurisprundence of the largest English speaking country in the world. Try reading a bit- it’s close enough to the Queen’s English to give it a go, and the SCOTUS rulings are by and large a hell of a lot better written than our Lords’. ”

Try learning some law before, rather than after, being condescending about it.

The only common law jurisdictions that (sometimes) deny injunctions to those that require them to protect reputation or privacy are the US ones; but even they do not deny injunctive relief, where appropriate, to prevent unprotected speech a hearing.

“Damages by definition COMPENSATE, so the injustice is made whole. This does not unring the bell but to think it does not do justice is to discount the whole field of tort law.”

See above. Injunctions are available throughout tort law – it is only the Americans that make any limited exceptions to that principle, and then only in the cases of defamation and privacy. The idea that damages are sufficient remedy in every case is absurd. You clearly are not familiar with the American Cyanamid tests for grant of an interlocutory injunction, which expressly recognise that damages are not an adequate remedy in every case. The fact that you cannot “unring the bell” in privacy cases is a clear indication that privacy cases are in general those where damages are not an adequate remedy.

126 Robin Levett June 3, 2011 at 07:55

@Ben contd:

Just one further thought; the comparison with the USA is not quite as useful to you as you believe. The level of political discourse there is “not high”. Talk show hosts, on the back of their absolute constitutionally protected right to lie at will and at volume, have grown both rich and powerful; so powerful, in fact, as to become the de facto leaders of the Republican party. Roughly a quarter of the electorate was persuaded by those same talk show hosts to believe that the first black man to be elected President of the USA was not born where his birth certificate said he was born. Largely untrammeled free speech has been corrosive of democracy in the USA.

127 Ben June 3, 2011 at 08:39

This is not a debate about what the law is but what it ought to be, and whether our judges have made good privacy laws since the HRA, or bad ones. American Cynamid had no implications for open justice or free speech – privacy cases are clearly distinguishable on that basis so there can have been no obligation to apply the same rule.

Libel and privacy are the only areas where secret or anonymous injunctions become a serious issue, that’s why the exception is made in US law, because it is recognised that open justice, and the ability of the people to see and debate the actions of the court, and their consequences, must override.

We disagree as to whether invasions of privacy are reparable by damages. I think they generally are. We disagree I think also on whether the boundaries of privacy are appropriately drawn, though we haven’t really discussed that.

But you clearly don’t believe as I do that open justice is of overriding importance. This perhaps is the crux of our disagreement.

Thank you at least for taking the time to debate the issue.

128 Anonymous June 3, 2011 at 10:41

Ben June 2, 2011 at 09:08

Your point about ….

* It’s not always possible to know what is in the public interest without having the public debate first. Injunctions require the Judge to pre-judge the outcome, at risk to democracy. Damages do not – they require he who would disclose the information to do so, at their own risk. *

…..tends to ignore not only that, at least insofar as press coverage of the issues in question is concerned, which is the primary media that the majority of people get their information from,

1 – the PCC Editor’s Code of Conduct ostensibly precludes them from publishing articles which are not in the public interest, which means that some things won’t see the light of day regardless, but also that

2 – there is going to be no debate if they choose not to publish anything which IS in the public interest.

Not too much has appeared lately in the tabloids about press phone hacking, has it? And have you watched how the different stables close ranks across their broadsheet and tabloid interests, take consistent editorial and contributor stances and bar public comment on the related articles when it suits them to roll the wagons into a circle? Go back and read through all the Mosely press articles – the Times ones are classics. Not too much democratic debate allowed there.

(as an aside, if you think that damages can reasonably be expected to compensate for wrong done, read Eady’s judgement setting out just what the NOTW did – and the expansions on the detail of that which can be found elsewhere – and ask yourself if you think that the small change that he was paid in damages was sufficient recompense to him or punishment for what was done)

Anyway, the second factor is arguably a much greater risk to democracy than having suitable law applied by an independent judiciary to allow a balanced view to be taken on some matters where ‘the public interest’ content is contentious

By the way, I’m not sure if, or how, you think that democratic debate on these matters is going to produce a world where people enjoy a reasonable quality of life, insofar as that is measured by liberal tolerance and freedom from the interference of others, but you only need to read the comments section of the Daily Mail to see where the democratic majority is likely to take us.

129 Sceptics 'R Us June 3, 2011 at 10:42

Sorry. Comment 128 is mine

130 Ben June 3, 2011 at 12:06

I believe I have made all my points now. We have not really discussed the proper scope of privacy but I think that should wait for another occasion to avoid muddying the waters. So unless anyone has any point they want me to answer this will be my final comment.

@Anonymous, you make an excellent argument for open courts and a free press. As I recall the ideal of the public square is that the papers shout at each other, the Manchester Guardian being opposed to the Times for example, with a thousand handbills and soapbox speakers arguing the toss, rather than the Times hosting a multi-sided debate on its own. I am not sure why you think that argument supports secret justice though.

The Mosely case raises issues of the scope of privacy, but that aside, who assessed the damages? Who decided what/if punitive/aggravated damages would be available? If damages are insufficient to compensate, that’s a criticism of the level of the award, not damages in principle. If they are insufficient to punish, that’s an argument *for* punitive or aggravated damages not against them.


@Robin Levett, Anonymous,

I certainly don’t think that the witterings of talkshow hosts or the Daily Mail are the be-all or end all. Certainly the polloi are unfit to govern, but “The danger is not that a particular class is unfit to govern. Every class is unfit to govern.” (Acton)

Judges too: That’s why we need to see what they are up to.

Once again thank you both for taking the time discuss the issue, as well as tolerating my sometimes irascible comments. I hope we all better understand other views than we did before, even if we are no closer to agreeing.

131 Robin Levett June 3, 2011 at 12:37

@Ben #130:

Just one point:

“But you clearly don’t believe as I do that open justice is of overriding importance. This perhaps is the crux of our disagreement.”

I mildly object to your putting words in my mouth; my disagreement however goes beyond that.

My point is that there can be no effective privacy law if the person’s right to privacy is pre-emptively rendered nugatory by release of the information into the public domain. Without injunctions to prevent disclosure of the private material no-one would seek to protect their privacy by means of an action; the “Streisand effect” would make any claim for damages alone counterproductive, whatever damages are awarded.

There has been no public interest in disclosing any of the material the subject of the limited number of superinjunctions granted; or at least none that the press has chosen to argue. That being the case, the fact that in that limited number of cases those not directly involved do not know the facts is hardly a challeneg to democracy as we know it.

Our disagreement is that you are content with what I consider to be an ineffective privacy law – namely one which cannot protect privacy – I am not. You insist on the entitlement of both Parliament and public to know the details of any privacy claim brought, including the identities of he individuals involved; even though that defeats the whole point of a right to privacy.

132 Ben June 3, 2011 at 14:07

(I said I would bow out- you objected to my characterising your view but you have done the same to me. I hope you don’t object to one last post).

I do not expect the law to prevent all wrongs, which is impossible. I hope for it to prevent many by deterrence, and provide justice for much – not all – of the rest.

The main benefit of any law ought to be that it deters wrongful acts in the first place, so there is no claim made, and no “Streisand effect”. I have said in more detail why I think punitive damages are adequate to provide effective deterrent protection in most cases, and just compensation and punishment in most of the remainder – surely all that the law can hope to achieve.

We appear to disagree on whether or not that would be the case, and whether or not it would be more effective than the current fad for anonymous injunctions.

But that said, IF they do conflict, I believe open justice MUST override privacy.

I will never be persuaded otherwise – that is why I think this is the crux of our disagreement, since it does not depend on the question of whether punitive damages would or would not be an effective deterrent.

133 IAN JOSEPHS June 3, 2011 at 14:53

Free speech =free speech ! Gagging = Suppression of speech
If Imogen did want to sell her story and profit from the encounter,why not? A few old men might hesitate in future to [redacted: I think what you wrote here may have been defamatory – Carl] if she did !Everyone should be free to say what they like when they like providing they do not incite others to violence or contravene the official secrets act.
The worst example of gagging however is not the gagging of mistresses and call girls but the gagging of mothers whose babies have been taken at birth by social services.The UK is the ONLY country in the world GAGS such mothers ,a disgrace to democracy.
We should all be ashamed……..
The right of all citizens to protest publicly against what they perceive to be oppression by the State is what separates democracy from tyranny.
Long may it remain so !

134 Anonymous June 3, 2011 at 21:50

I have a question for the privacy experts here.

Suppose celebrity X conducts a private affair with mistress Y. Y wishes to publish the story of the relationship.

It seems clear that, under current English law, X has the right to an injunction preventing Y from publishing details of the affair.

What if Y claims that X physically (or even sexually) assaulted her during the relationship? Would Y be allowed to publish her story? Would the mere allegation be sufficient? Would a judge decide upon the merits of Y’s claim? If so, what standard of proof would the judge use? What if it is purely a he-said/she-said story, as so many such claims are?

What if Y claims that X, a footballer, admitted to her that he used illegal performance-enhancing drugs? What if the drugs were not illegal under the law of the land, but breached the laws of football?

135 ian josephs June 3, 2011 at 23:17

Free speech should mean what it says.We did away with censoring books so we should do away with censoring speech.
If we do not incite others to acts of violence and do not infringe the Official Secrets Act we should be free to say exactlywhat we like in or out of parliament without being restrained by injunctions issued by largely politically correct judges.The laws of libel and slander are more than sufficient to protect us against false allegations.
Hemming revealed two names using parliamentary privilege .Well I maintain we should be able to name such names even if we are outside parliament.
The mistress should be free to name herself and her sugar daddy even if judges disapprove.Rather more important mothers who have their children removed by public authorities should be able to protest to the media if THEY choose to do so without threats of prison if they do.
The right of all citizens to protest publicly against what they perceive to be oppression by the State is what separates democracy from tyranny.
Long may it remain so.

136 ukliberty June 4, 2011 at 11:29

Anonymous @134, I do not claim to be an expert, far from it, but it seems to me that your examples are about criminal offences the victim, witness or confidant should report to the police, in the case of physical or sexual assault or use of illegal performance-enhancing drugs or, in the case of legal drugs but banned by a sports authority, to that sports authority.

I’ve read some of these judgements (contrary to Ben’s suggestion, this is not wholly ‘secret justice’, indeed there have been public hearings) – I have not seen any suggestion, explicit or implicit, that a person may not report a crime or any other kind of wrongdoing to the appropriate authorities. Indeed, Mr Justice Tugendhat made this clear during at least one of the hearings – see para 9 [2011] EWHC 1309 (QB):

The injunctions of 1st and 9th March were not intended prevent disclosure of any information to the FSA or to any regulatory authority. There was a discussion between counsel on this in court at my request and there was unanimous agreement on this point, and that if anyone proposing to make any such disclosure was in doubt, then the order could and would have been varied accordingly upon the matter being drawn to the attention of the court.

Why would the person first go to the newspapers? Now, if the authorities did not investigate, I would say there was a public interest in this story (perhaps absent identifying information) being published by the newspapers.

137 ukliberty June 4, 2011 at 11:45

Ian Josephs @135,

See [2011] EWHC 1197 (COP). This family simply does not want to be identified, approached by journalists, harassed, doorstepped, gossiped about, and so on, at this difficult and emotional time, until a public hearing next month. And who can blame them?

Why should ‘freedom of speech’ outweigh this particular family’s understandable desire to be let alone for two months?

138 Anonymous June 4, 2011 at 13:21

UK Liberty
We were born with mouths and tongues but not gags !Curtailing free speech is the first but probably the most decisive step towards dictatorship.The family you mention are not obliged to talk to anyone they do not wish to, and do not have to watch any tv programmes or read any newspapers that may feature them.
It is only a short step from curtailing free speech to curtailing freedom of movement ,and freedom of thought and of belief.
We should not take that step.Above all,UK citizens claiming to be unjustly oppressed by the State (like the mother named by John Hemming in parliament) should have the right to try and enlist public support via the media without judges gagging them using the spurious excuse that they might be violating the privacy of their own children !

139 ian josephs June 4, 2011 at 13:59

Of course freedom of speech should outweigh privacy every time.
We were all born with mouths but not gags !
Curtailing free speech is the first step towards curtailing freedom of movement and freedom of thought and belief.
The family you mention are not obliged to talk to anyone ,they are not obliged to watch any tv programmes or read any newspapers that feature them.
It is fundamental in a democratic country that any citizen considering themselves unjustly treated by the State should be free to go to the media to enlist support for their protest.Take that right away and you take the first steps to installing a totalitarian regime;

140 ukliberty June 8, 2011 at 17:42

ian josephs,

Quite how concerned we must be that there is a prohibition on identifying this family I don’t know. The order makes clear that it “does not restrict publication of information or discussion about the treatment of patients in a minimally conscious state…” in a general sense, absent identifying information, and then only for two months until a public hearing to decide the matter. Yet you would have it that this is a first step toward curtailing freedom of movement and thought and belief? It seems a bit of a stretch to me.

Your ideal world seems far more oppressive, where ‘the people’ and the press have the absolute freedom to gossip about this family and pry and poke into their private lives at a time of great turmoil. I hope Carl does not mind me quoting a large chunk of On Liberty by John Stuart Mill, for it is this that springs to mind when imagining your utopia:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant–society collectively, over the separate individuals who compose it–its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

141 Anonymous June 8, 2011 at 20:03

Suppose that the Dominique Strauss-Kahn (DSK) incident had occurred in London, rather than New York.

DSK seems to be claiming that he had consensual sexual contact with the maid. Would he therefore be entitled to a privacy injunction forbidding his identification as the man accused of sexual assault?

At the hearing to discuss DSK’s request for a privacy injunction, would the judge consider the likelihood of the incident actually being consensual? If so, what standard would the judge apply?

At DSK’s eventual trial, would DSK be entitled to anonymity in newspaper reporting of the trial? What if he were eventually found guilty?

142 ukliberty June 9, 2011 at 00:16

Anonymous@141,

No.

No. Inapplicable, see answer to previous question.

No. No.

143 Anonymous June 9, 2011 at 00:24

@ukliberty@142:

Your “answer to previous question” (assuming you mean 136) states that the maid could report the incident to the police, but doesn’t say anything about whether she (or the police) may tell anyone else

144 Robin Levett June 9, 2011 at 01:22

@Anonymous:

It seems to me that the reporting of the DSK case in the US media would probably, if it took place here, be in contempt of Court as being highly prejudicial to his chances of a fair trial; his privacy rights hardly begin to register, against that background.

145 Anonymous June 9, 2011 at 02:04

@Robin Levett:

OK: let’s make this a bit more hypothetical.

Suppose that, before anyone in the press had been informed of the arrest, DSK had managed to call his reputation management lawyers and had told them to get a privacy injunction to restrict any media coverage identifying him by name as the subject of the sexual assault complaint. Would it have been granted?

146 ian josephs June 9, 2011 at 13:06

UK Liberty
My main argument has alwas been the same.Any citizens that feel unjustly punished by the State should be free to protest to the media.
That freedom represents a very essential difference between a democracy and a totalitarian State.I apply this principle especially to mothers whose children have been taken by public authority for risk of emotional abuse !
I am surprised that anyone including the word “liberty” in their title should be in favour of suppressing the right of open but peaceful protest .

147 ukliberty June 9, 2011 at 20:39

Anonymous @143, sorry I was unclear – my comment was in response to your questions @ 141, nothing else. To clarify (and expand) :

DSK seems to be claiming that he had consensual sexual contact with the maid. Would he therefore be entitled to a privacy injunction forbidding his identification as the man accused of sexual assault?

I doubt it.

At the hearing to discuss DSK’s request for a privacy injunction, would the judge consider the likelihood of the incident actually being consensual? If so, what standard would the judge apply?

I don’t think this is applicable because I don’t think he would get such a hearing.

At DSK’s eventual trial, would DSK be entitled to anonymity in newspaper reporting of the trial? What if he were eventually found guilty?

No anonymity AFAIK (but IANAL).

ISTM there is a public interest in there not being anonymity for sexual offenders and people suspected of sexual offences and, if you recall, there was an uproar recently when it was proposed that people suspected of rape should remain anonymous unless and until they are found guilty. [2008] EWCA Crim 50 may be of interest, this is a judgement overturning an order made for the benefit of the offender’s young children, with whom one can sympathise, but the judges said:

“If the court were to uphold this ruling so as to protect the rights of the defendant’s children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.”

If you are the same Anonymous @134, I repeat I haven’t seen any suggestion in the injunctions and judgements the mainstream media has been making noises about that people should or are prohibited from reporting wrongdoing to the authorities and the media from reporting on criminality. With the exception of one or two cases outlined by Private Eye the cases that have made the news relate to kiss-and-tell stories and the media in such cases have either not contested the orders or not made public interest arguments. Indeed the cases of interest in Private Eye have not AFAIK been shown any interest by the mainstream media.

148 ObegreeSiff June 14, 2012 at 00:53
149 ian josephs October 9, 2014 at 14:13

Frankly “Liberty” as an association is a disgrace to its name.They refuse all discussion about UK children taken from mothers for” “risk of emotional abuse” and forced adoption.They never offer support or even comment when parents whose children are taken for forced adoption are brutally gagged by the courts in defiance of human rights to free speech and freedom of asociation.Vicky Haigh with no previous criminal record was sentenced to three years jail for speaking to her daughter in a petrol station( she had not seen her for two years) in defiance of a court gagging order.This passed by” Liberty” without comment”.Liberty” ??They don’t know the meaning of the word! ; what a bunch of sanctimonious hypocrites they are !

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