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Privacy: Gagging on Super-injunctions

The opinions expressed by the media and politicians about super-injunctions are both inaccurate and self-serving. Whenever judges are accused of interfering in matters best left to Parliament an alarm is triggered in the corner of my mind. Judges are, on the whole, extremely sensitive to the sovereignty of Parliament. Thus, when David Cameron describes his uneasiness about judges "creating a sort of privacy law... rather than Parliament" [1] and the media vents ire about judicial activism, I find myself needing to quiet that siren with the soothing balm of reason. The reporting of the super-injunctions issue is awash with inaccuracy, so it is necessary to begin by outlining how we came to have "a sort of privacy law". Privacy in English law has developed substantially since the Human Rights Act took effect in 2000. The Act gave domestic legal effect to the European Convention on Human Rights, which we signed in 1950 after World War II. Article 8 of the Convention provides a right to 'private and family life...home and...correspondence'. Article 10 provides a right to freedom of expression. When the two rights conflict, they need to be balanced against each other, and the Human Rights Act provides guidance to assist with this. Section 12(4) requires the court to have particular regard to the importance of Article 10 where 'it is, or would be, in the public interest for the material to become public'. Super-injunctions arose to protect Article 8 rights. They are 'interim non-disclosure orders' (it was the Guardian that coined the term 'super-injunction') that temporarily prevent the reporting of the existence of an injunction or the details of court proceedings until the case is over. Notwithstanding the view encouraged by the media, super-injunctions are exceedingly rare. Last month Lord Neuberger delivered the Report of the Committee on Super-Injunctions, which showed that only two super-injunctions had been granted since January 2010. This is how the report described their function: '...the temporary secrecy provided by a non-disclosure order is required and justified where, without it, the court would not be capable of fulfilling its primary constitutional duty of doing justice. As Munby LJ has said, the absence of secrecy 'in such circumstances (would be likely) to lead, directly or indirectly, to a denial of justice'. The use of non-disclosure orders in such cases is entirely sensible, justified and unobjectionable as long as, and only insofar as, they provide a form of shortlived, temporary secrecy which lasts no longer than strictly necessary.' Anonymity orders, regularly misreported as super-injunctions, prevent the naming of parties but not the reporting of proceedings. Such orders will persist where necessary, as it will occasionally be difficult to justify that reporting the identities of parties to a case is in the public interest, when to do so invades their privacy. Such orders are a necessary part of a body of law that respects individual privacy. If so few super-injunctions have been granted, and if their purpose is to temporarily serve justice, why have they attracted such criticism from the press, and why has Cameron expressed concern? Paul Dacre, the editor of the Daily Mail, a publication not known for restrained criticism of the courts, summed it up well in 2008: "the British Press is having a privacy law imposed on it,, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market". [2] This view seems to indicate that the financial interest in publicising the sexual escapades of footballers outweighs the interests of justice. As for Cameron's uneasiness, one suspects he is playing to the media while also deflecting criticism about privacy law away from Parliament and onto the judiciary. The reality is that Parliament not only knew that privacy law would develop under the Human Rights Act, but knew this was needed. Certain events involving the press, preceding the Act, make this clear, and are well illustrated by the following passage from Geoffrey Robertson QC's 1998 book The Justice Game: 'In 1997 Diana was killed fleeing the flashbulbs she so often positioned herself to attract, a terrible end to the Faustian bargain she had made with the media. Her death has, however, provided some wider understanding of the universal need for a right to be let alone. The law she failed to create in court will, I hope, come about under the impetus of the privacy guarantee of the European Convention on Human Rights, once it is incorporated into British law'. What Cameron and the media fail to mention when they criticise the judiciary is that Parliament has had ample opportunity to guide the application of privacy laws. In an authoritative survey of privacy law [3], Hugh Tomlinson QC observes that Private Members Bills concerning privacy were introduced to Parliament in 1961, 1969 and 1989. Committees reported on privacy in 1972 and then again in 1990. The idea of a Privacy Act was consistently rejected. As Lord Lester recently remarked: 'A Privacy Act would probably do little more than codify the existing Convention and UK legal criteria as to how the balance should be struck between free speech and personal privacy'. [4] The 1990 report recommended self-regulation of reporting by the Press Complaints Commission, which is interesting because David Cameron commented on 3rd May that he endorsed self-regulation by the PCC [5]. That report gave the PCC 18 months to prove it was up to the task. Then, in 1993, the same committee concluded that selfregulation was not working. If we are to have self-regulation by the PCC, it would be a good idea for the PCC to provide a more detailed privacy code, of which the judges would be required to take account. The current PCC Editors' Code of Practice has woefully little to say on privacy and whilst this remains the case it is unsurprising that newspapers are not properly considering privacy interests. Perhaps now that the Report of the Committee on Super-Injunctions has been published the media's indignation will subside. It seems unlikely that the inaccurate reporting can plausibly continue in the face of the committee's findings. As the issue falls away, we should reflect on how widespread the inaccuracy of reporting was and how this relates to the threat to newspaper sales. As for Cameron's willingness to jump on the bandwagon, I think we should expect that by now. Read the The Report of the Committee on Super-Injunctions )

Next article in issue 39

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