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Neuberger super-injunction report opens new front against the media

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Lord Neuberger’s report on super-injunctions, perhaps inadvertently, has opened a new front in the judiciary’s war with the press over privacy law. As a by-product of his detailed researches for the report, his lordship has discovered that newspaper editors, for so long regarded as pillars of our community, should actually be mostly banged up in jail. Their crime? Publishing reports of Parliament.

Neuberger was a property lawyer and hence a bit of a black letter man by all accounts. So imagine his discomfiture when he could find nothing authoritative in written form giving the press full legal immunity to report whatever parliamentarians choose to say in Parliament – including material covered by super-injunctions.

This opens the possibility that in reporting John Hemming MP and Lord Stoneham on the Fred Goodwin affair and now the Ryan Giggs affair the press has laid itself open to contempt of court proceedings, meaning big fines or editors behind bars.

Neuberger is concerned about the sub judice rules and the arrangements for Parliamentarians to avoid breaching them (given injunctions are often anonymised). A parliamentary database of all such super-injunctions and anonymised injunctions is his answer so parliamentarians will know what they must not talk about.

But this is just skirting around the big issue – those such as Stoneham purposely breaching injunctions (and hence, on the face of it, sub judice rules) where they regard a matter of public interest is involved. Their statements are reported in the media on the basis that they are covered by parliamentary privilege, meaning neither the politician nor the media organization can be hauled in by a judge for contempt of court. It is this belief that Neuberger has now questioned.

The Master of the Rolls was accompanied at the launch of his report by his minder, Lord Judge, who said to the gathered members of the press: “You need to think, do you not, whether it is a very good idea for our law makers to be flouting a court order just because they disagree with a court order, or for that matter because they disagree with the law of privacy which Parliament has created.”

The Lord Chief Justice comes across as a bit of a bruiser. “I might send the boys round,” he is saying, “Things might get broken. People might get hurt – but no pressure.” He is acknowledging that parliamentarians can speak freely, but suggesting it might be wise if Parliament were sometimes to curb them – not because judges had told it to do so, you understand. Just because it might be better that way. He is reported by Neuberger as saying that “if Parliament took this course, it would not be because ‘a court has sought to order it, but because Parliament has chosen in the public interest not to insist on its privileges’ ”.

Background

Paradoxically the original principle of parliamentary privilege was that those outside should not hear of the proceedings in Parliament. Reporting was banned, the monarch was supposed to ignore anything that came to his ears, and the courts could not question anything that came up in debates. In the words of the Bill of Rights 1689: “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This gave no freedom to report those debates.

Neuberger says the Parliamentary Papers Act of 1840 extended qualified privilege to media summaries of Hansard, meaning immunity from civil or criminal prosecution for publication in good faith and without malice. So whether the Act covers the reptiles crawling around the Palace of Westminster simply trying to get a good story, possibly with malice in their hearts, is a moot point.

But Neuberger’s main contention is this: there is “no question that a super-injunction, or for that matter any court order, could extend to Parliament, or restrict, or prohibit parliamentary debate or proceedings”; however, “it is unclear whether it [reporting] would be protected at common law from contempt proceedings if it breached a court order” since there have been no cases on this. So Stoneham is in the clear – but those reporting his words may well be in contempt of court.

Neuberger says: “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.” Just as the press would not report the words of the judge or lawyers in the court, nor would they be able to report the words of the politicians talking about the same case in Parliament.

There is also an argument, though (here Neuberger refers to the 1999 Joint Committee on Parliamentary Privilege) that it would be absurd that the public could go to Hansard for those racy bits of contempt of court but could not read them in their Daily Mirror.

Neuberger’s consideration of the exposure of the Trafigura toxic dumping case treats that as part of the problem of the press freely reporting Parliament rather than a victory for the free press thanks to the intervention of Paul Farrelly MP in the Commons. Had Neuberger’s system been in place, Trafigura would be on the sub judice database and Farrelly would have been advised he could not table his question on the matter. Neuberger notes, too, that the Guardian’s legal advice was that it could not report Farrelly, and so it didn’t. The Guardian was banned from reporting Parliament on this issue – until all hell broke loose the day after thanks to Twitter and other social media. The Guardian gagging order was lifted.

If Neuberger and Lord Judge wish to add fuel to the already blazing row between the media and judiciary over injunctions and “judge-made privacy law”, what better way than trying to ban them from reporting Parliament in the manner they have done as a matter of custom and practice, apparently covered by privilege, or banning politicians (sorry: getting them to ban themselves) from raising matters of public interest in Parliament. The Sun, not normally an organ concerned with the intricate detail of constitutional matters, has made its views known already: “M’Ludicrous: Storm at free speech threat”. No doubt Kelvin MacKenzie is already sharpening his pencil to offer his considered view on the matter. See An issue of judicial underwear for the likely tenor of his contribution to the debate.

Note: A pdf of the Neuberger report on super-injunctions is here

Privacy, human rights, horizontality and the issue of judicial underwear

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Former Sun editor Kelvin MacKenzie has a simple explanation for why judges are so keen on privacy and issuing injunctions and super-injunctions to protect it: they must all be wearing silk knickers.

There are, of course, a few lady judges (a very few) whose choice of underwear cannot be impugned. But Kelvin is worried about the men. They have something to hide, he believes, so they are constructing a law on privacy out of the European Convention on Human Rights to help them hide it. David Cameron too has complained about judges creating privacy law illegitimately: “What’s happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so.”

Nothing could be further from the truth, said the Lord Chief Justice, Lord Judge, welcoming the Neuberger report on injunctions. “Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by Parliament. Now that they have been created judges in this country cannot ignore or dispense with them.”

So who is right? The issue is one of “horizontality”. (No, Mr Mackenzie, we are still not talking about the private lives of judges). Horizontality is embodied in the Human Rights Act 1998, Section 6 which says:

“Acts of public authorities: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
… (3) In this section “public authority” includes – (a) a court or tribunal …”

The provisions of the European Convention on Human Rights (which the Act allows to be directly accessed in UK courts) apply directly only to governments and the public authorities that are regarded as offshoots of governments. They pass “vertically” between the European Court of Human Rights interpreting the convention and national governments. So you cannot go to the court to “get your human rights” against peeping Toms – or even, on the face of it, newspapers, though long-established UK laws may cover their more undesirable activities.

Article 8 (1) of the Convention says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” This is clear and direct as far as privacy vis a vis the state is concerned. But judges have utilised Section 6 of the Human Rights Act to make it operate horizontally too. The Act says courts, along with all public bodies, must not operate incompatibility with the convention – so judges, it is argued, can, indeed must, introduce its provisions into the private sphere through their judgments – horizontally.

The convention makes an assertion: that private and family life must be “respected”; the Act insists on a double negative: that public authorities should not act incompatibly with the convention. From this judges are creating a positive right to privacy for all people (who can pay) against all organisations and individuals – not just against the state.

There was a certain reluctance to apply horizontality in some earlier privacy cases, such as the 2003 high court case of Douglas and Others v Hello! Ltd, (the Catherine Zeta-Jones wedding photos) where the issue was bundled into one of confidentiality (where there is a long-standing English law tradition), and A v B plc, in 2002 a typical errant footballer case (B being the Sunday People newspaper). The doctrine of confidence, given a bit of backbone by Article 8, provided sufficient remedy in these cases. In finding for plaintiffs on the basis of confidentiality, the judges felt they had satisfied the requirement not to act incompatibly with the convention.

In Campbell v MGN Baroness Hale said: “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.” This means a claim of confidentiality will be viewed in the light of Articles 8 and 10.

In Douglas, Sedley LJ nevertheless stated that “by virtue of s.6 [of the HRA] the courts of this country must themselves act compatibly with” the convention. He did not use the double negative of the Act itself, implying perhaps that plaintiffs could indeed “get their human rights” against private individuals or organisations.

A European Court of Human Rights case in 2004, Von Hannover v Germany, makes this explicit to the extent of requiring the state to pass laws that extend human rights into the private sphere:

‘The Assembly [ie court] points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media’

It added: “The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy”. In Britain, of course, such legislation has not been forthcoming, but since Von Hannover it is noticeable that judges have become more confident in issuing their injunctions and super-injunctions as if such legislation does exist, founding their judgments in the convention – or elsewhere.

In a recent injunction case, (March 2011) ETK v News Group, Lord Justice Ward sought his legal principles not only in Article 8 of the Convention but also various other extra-national documents to which Britain is signed up: the United Nations Declaration of the Rights of the Child 1959, the Convention of the Rights of the Child 1989 (UNCRC) and the European Union’s Charter of Fundamental Rights. (The argument was that the children of an adulterous man in the public eye would be bullied if his indiscretions became public.)

Playground bullying is increasingly used in such cases to protect exposure of fathers’ sexual behaviour, a matter of concern, no doubt, to newspapers wishing to expose those hiding behind a “family man” persona. Newspapers may also worry that the law is being created out of interim injunctions as in ETK rather than substantive cases in open court. Often they do not make it that far, as Liberal Democrat MP for Birmingham Yardley, John Hemming, pointed out the Commons: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” (See previous Alrich blog on super-injunctions)

The answer would, of course, be for Parliament to legislate. It is obliged to as a signatory to the convention – just as judges feel obliged to fill the gap, however unsatisfactorily, if it doesn’t. The legal world has got its knickers in a twist – whatever fabric they might be made of.

A new judgment from the ECtHR, Von Hannover v Germany, February 2012, upholds press rights. Read it here. Also see Axel Springer v Germany here, released on the same day.

Note: There is further discussion of privacy law in light of the Leveson phone-hacking inquiry here

Jemima Khan and Max Mosley in super-injunction tangle

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Warning: This post retails gutter press tittle tattle from the start. It then descends into a serious legal discussion of injunctive relief – which is not as sexy as it sounds. Sorry.

Jemima Khan has denied involvement in an act that would have brought her down in the eyes of all right-thinking individuals: seeking an injunction against the press. Max Mosley, meanwhile, has lost his attempt to force newspapers to warn people before they publish stories about their private lives. Such pre-notification might allow an errant husband to square things with his wife before the world of journalism appears at their front door. It is more likely, though, that Mr Mosley would have used this valuable time to awaken a judge from his slumbers and get him to issue a quickie super-injunction.

There used to be a simple legal principle: if something is true, you can say it (subject to various issues such as confidentiality). In the weird and wacky world of the super-injunction (or even the ordinary bog-standard injunction) if people say it, even if it’s true, “they should  expect a knock at the door in the next 48 hours and they should take their toothbrush to court, because they can expect to spend a very long time in Pentonville,” as media lawyer Mark Stephens at Finers Stephens Innocent put it. This even as a result of a little Twitter chitter-chatter.

It sounds pretty draconian. Oh, all right; Stephens is exaggerating a little, but breach of an injunction is a contempt of court. This allows a judge to punish the offender summarily on his own judgment (juries don’t come into it) and choose from a range of penalties including large fines or imprisonment for up to two years. So, actually, it is pretty draconian. Best to pack a few toothbrushes.

The judge can do all this even though there has been no full hearing of the case that lies behind the injunction. In other words the issues have not been tried and it may well be that, ultimately, the applicant has no case, even under the European Convention on Human Rights Article 8 (Everyone has the right to respect for his private and family life, his home and his correspondence).

Misdeeds

An interim injunction is intended to halt, say, a newspaper’s publication of a star’s sexual misdeeds. It is given pending a full hearing of the substantive case. The injunction may be issued without the newspaper’s lawyers even having an opportunity to put in a defence (ex parte in the old jargon, now known as an injunction without notice). The judge simply has to decide whether, if the newspaper published but then lost the (later) substantive case, the loss to the star would have been so great that it could not be remedied by damages. And the judge is always going to decide, yes, publication now cannot be undone later, so it is better, on balance, to ban publication now.

It is true that the judge must also have the Convention open at Article 10 (Everyone has the right to freedom of expression) and the Human Rights Act 1998 S. 12 when he makes the order and hence “be satisfied that the applicant is likely to establish that the publication should not be allowed” – in other words that there is a good case for a ban and that the case is likely to be sustained in the substantive trial of the issues.

Doubtless the learned judge will never have heard of half the stars who appear in front of him in these sad circumstances since he will be no avid reader of the yellow press (“Who, might I ask, is Mr X?” “He is a popular televisual entertainer, m’Lud”). But it is very likely that, without a full examination of the implications of Article 8, he will plump on the side of caution and give the injunction.

The problem, for freedom of the press, is that once the applicant has the interim injunction, he has no incentive to move to the substantive case. It would be costly, long drawn-out and, in particular, he might get the wrong result since, once the arguments have been put in full, the judge might decide there is no good reason to continue to ban publication.

Consequences

So the issue remains in limbo but with the threat of terrible consequences if someone lets the cat out of the bag. It is very difficult to challenge interim injunctions since the judge has a broad measure of discretion in issuing them. As long as his thought processes are as outlined above, he has acted wholly correctly.

Perhaps, as time passes and the star fails to bring his case to court, a challenge could be made. Perhaps the paper could claim the star had no intention of bringing a case; he just wanted the injunction. He would have breached rules of equity (since injunction is an equitable remedy) in making the claim. He who comes to equity must come with clean hands (ie with honest intentions) and not hands behind his back and fingers crossed as he addresses the judge.

But the fact is that these cases often remain in limbo, the case never heard, the chance to assert the legal right of freedom of the press never offered. This is the concern of the Liberal Democrat MP for Birmingham Yardley, John Hemming, who said in Parliament: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” He noted too that the matter, while in this limbo, also remained apparently sub judice so the legal issues cannot be discussed even though there may be no intention by the plaintiff to bring the matter before a judge again.

The use of injunctions in this way clearly has implications for  freedom of the press, but there is another issue at stake. If we are to allow judges to make privacy law (David Cameron has said he doesn’t want to, but has offered no alternative) then they are making it in a scrappy, partial way. The important cases are not coming to court, the issues are not being raised, the principles not being enunciated. We just know we can’t say things that are true without knowing quite why.

A discussion on the Lord Neuberger superinjunction report and Hemming’s naming of a famous footballer is here

The Max Mosley case in the context of Leveson Inquiry and privacy law is discussed here

The Max Mosley European Court judgment is here

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