I’m pleased the Guardian defeated Carter-Ruck in the Trafigura, Minton report, superinjunction affair. I don’t know or understand why a superinjunction was granted preventing publication of the fact of the injunction (as opposed to an ordinary injunction merely preventing publication of the Minton report), and I doubt it was right for the judge to grant one. But I’m afraid one or two myths have grown up about this Trafigura business.
First, some people think it was about libel, and shows the need to reform libel law. But no, it wasn’t about libel, it was about legal privilege – and superinjunctions can come in other sorts of proceedings, notably but not only those about privacy. Second, the idea has taken hold that the injunction trespassed on Parliamentary privilege – but no one has ever suggested it restricted what Parliament could do. It was scandalous enough that Carter-Ruck sought to interpret it as restricting Parliamentary reporting by the Guardian, but that is a different thing.
What I’m most afraid of, though, is that this affair will leave people with the idea that superinjunctions are always, and necessarily a bad thing, and that anyone interested in protecting free speech should be against them. I’m as fiercely in favour of free speech as anyone: but very few people believe in absolute free speech, and nor do I. I think there are some limited circumstances in which other important rights can outweigh the right to free expression, and I think superinjunctions have a place as being in some circumstances absolutely essential when nothing else will protect those rights. An example may help – this is developed from one I first thought up when commenting at Harry’s Place.
A newspaper editor much concerned about the collapse of standards in modern morality says on Newsnight that he’s obtained video evidence that a well-known and widely admired backbench MP is secretly a cross-dresser; he plans the next day to publish the video on his paper’s website to expose this simply shocking moral failure. The video was made secretly at the MP’s home by the newspaper’s political editor, who gained the MP’s trust over months by discussing his own pretended transvestism. The MP finally invited the editor to his home after the journalist asked for the MP’s advice and support over dealing with their “shared” secret. The video shows the MP drinking tea and discussing his own cross-dressing, and him and his obviously supportive wife offering moral support to the fibbing journalist in a frock.
The MP has a low profile on any issues related to transvestism, but has made statements in the local press praising the work of a local cross-dressers’ support group. His case is also mentioned in anonymised form in the book Coping with Cross-Dressing by the UK’s leading counsellor in the field, which is the first result if you search for “cross dressing” on Amazon.co.uk. Enough details of the case are given in that book to enable anyone who happens to know one of the three case histories is that of a “well-known and widely admired backbench MP” to narrow the field down to a dozen or so members; and each case history gives some further details of the people’s relationships and private life which reveal no wrongdoing but would simply be very embarrassing if their identities were made public. Most of these of course are not even about the MP at all. The MP consented to having his anonymised case discussed in the book in the hope of helping others.
Immediately following the Newsnight appearance of the moralising editor, there’s much talk on Twitter and on the MSM about the ethics and propriety of the promised exposure, about privacy, about the secret lives of transvestites, etc. etc.. A few bloggers are puzzled by a cryptic remark made by the editor, who they say seemed not to accept unreservedly Jeremy Paxman’s assertion that his paper “would be the first publication to go into print about this man’s cross-dressing”.
Does anyone think that, if the MP succeeds in getting an emergency injunction that night preventing publication of the video and any reference to Coping with Cross-Dressing, the terms of the order should leave the newspaper free to publish a story the next morning, simply naming the MP and saying he obtained an unspecified injunction against them the previous night? Or even saying that an unnamed person had obtained an injunction preventing any reference linking him to an unnamed book?
There may well be too many superinjunctions – there probably are – and one did not seem appropriate from what we know of the Trafigura affair. But don’t let’s run away with the idea that they’re never ever, ever, ever justified. Superinjunctions have a place – and can on rare occasions be essential to protect important rights.