The ability of an individual to go to a court and obtain an injunction which prevents the press from publishing what it wants to publish – whether for the purpose of protecting privacy or for some other reason – is obviously a particularly important issue in the free speech context.  It is important because, as Lord Northcliffe, that early pioneer of popular tabloid journalism and the founder of the Daily Mail, remarked when asked about the stock in trade of his newspapers: “News is what somebody somewhere wants to suppress.”

At the centre of recent debates about freedom of speech has been the topic of injunctions, specifically so-called ‘super-injunctions’, a term which has been used to conjure up the spectre of judicial censorship; of Kafkaesque secret justice being administered behind closed doors; of the Court seeking to place a fetter on Parliamentary debate and the reporting by the press of that debate; of a conspiracy of silence and of the public being denied their right to know.

As Ian Hislop, the editor of Private Eye, observed in a piece for The Guardian on 13 October last year:

“The injunction against the Guardian publishing questions to ministers tabled by the Labour MP Paul Farrelly is an example of a chill wind blowing more widely through the press.  In increasing numbers, aggressive lawyers, who used to use libel law to protect their clients, are now using injunctions to secure privacy and confidentiality.  They have found it is a legal technique which shuts down stories very quickly so that now it is not a question of publish and be damned, as it used to be: we are now finding that we can’t even publish at all.  One of our reporters made calls on a story involving the management of a lot of public money and we were immediately threatened with an injunction preventing publication…What is more, people have been taking out injunctions not only stating ‘you can’t print this’, but saying ‘you can’t print the fact that you can’t print this’.  There is an emerging culture of anonymity in which justice is not even seen to be done, and that is an unfortunate, rather dangerous, trend”.

Clearly it is no great leap from the articulation of concerns such as these to reflection upon the circumstances which led to the enactment of the Bill of Rights of 1689 and the historic battles fought and won in the 18th century for freedom of speech and press freedom.  As The Guardian put it in an editorial published the following day, 14 October 2009:

“The Bill of Rights, passed 320 years ago, is clear: “Freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”…  So readers of The Guardian had good reason to be alarmed by a report that the ‘Commons order paper contained a question to be answered by a minister later this week.  The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found’.  That media organisations were unable to report a parliamentary question was due to a so-called ‘super-injunction’ obtained…on behalf of Trafigura, a large London-based trading company.  A ‘super-injunction’ is one which not only prevents any publication, but which is itself secret.  Search in vain for the case in the court lists of the High Court in London: it appears only as “RJW and SJW v The Guardian”.  Under its terms, the Guardian was prevented from publishing a certain document: it was also banned from revealing that Trafigura had been to court to obtain an injunction.  When we became aware that the existence of this order had been mentioned in a parliamentary question we sought to vary the terms of the injunction.  We were advised by Carter-Ruck [Trafigura’s solicitors] that publication would place us in contempt of court.”

The Guardian editorial then went on to define what it saw as the main issues raised by ‘super-injunctions’:

There are three separate legal issues at the heart of this case.  The first is prior restraint, which casual readers may have thought had died a death after Thalidomide or the Pentagon papers.  It has not.  Trafigura had, on grounds of confidence, suppressed the Minton Report, which is connected to the dumping of toxic waste in Ivory Coast.  The company has paid damages to 31,000 Africans in relation to this dumping.  No newspaper can reveal the contents of this report, but at least we can now say that it exists and had been rendered secret.  The option of ‘publishing and be damned’ is not available.

The second principle is that of open justice.  There is no sound reason why the fact of the Trafigura hearing should not have been routinely recorded, and the wide-ranging injunction made a public document for all to see…

The final principle is the ability to report what goes on in parliament.  It is scandalous that a law firm acting on behalf of a wealthy trading company should have thought, for a moment, that it could gag media organisations from reporting parliamentary business…
… It is rather shameful that British judges should have spared the company’s blushes by handing down secret injunctions.  But at least the principle for which John Wilkes fought and was imprisoned in the 1770s – the right to report Parliament – has not been clouded.”

Putting to one side the bulk of The Guardian’s comments and complaints – with which one might agree in whole or in part or not at all – if anyone, casual reader of the Guardian or otherwise, had thought that the phenomenon of ‘prior restraint’ had “died a death” between the Thalidomide and Pentagon papers cases of the 1970s and the Trafigura case of 2009, then he or she would clearly have been wrong.  Prior restraint, notably in the form of pre-publication interim injunctions restraining the disclosure of trade secrets or other similarly confidential or sensitive information, has been alive and well throughout this 30 year period, as a cursory glance at a relevant text book or the law reports will attest.  Think the Spycatcher case (A-G v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109), for example.

What is new, I think, is, firstly, a marked increase in the prevalence of applications for and the grant of interim injunctions to prevent the publication of confidential or private information by the media; and, secondly, the ancillary orders that make super-injunctions ‘super’: orders anonymising the parties, using letters of the alphabet instead of names, banning any report of the injunction hearing, preventing the publication of any information about the proceedings, including the fact that an injunction has been granted or that the proceedings have been brought at all, and so on.

As regards this first development, this seems to be in essence the product of the courts’ adaptation of the law of confidentiality after the coming into force of the Human Rights Act 1998 to accommodate individuals’ rights under Article 8 of the European Convention, a process which really started with the Douglas v Hello! case in 2001 (Douglas v Hello! Ltd [2001] QB 967] and has developed apace ever since.  This development has been driven by a will on the part of individuals, usually celebrities and other well-heeled persons, to take advantage of the new law to prevent the press from publishing information about them which they would rather not have published.  As Ian Hislop put it, “…lawyers, who used to use libel law to protect their clients, are now using injunctions to secure privacy and confidentiality”.  And, of course, the rule in Bonnard v Perryman meant – and, as the law currently stands still means – that in 99 cases out of a hundred it will not be possible for someone to obtain an interim injunction to prevent the publication of an alleged libel.

As for the second new development, the ancillary ‘super’ orders, this phenomenon appears to be a result of both, first, the developments in the substantive law governing alleged misuse of private information coupled with the coming into force of the Civil Procedure Rules 1998.  This had the effect of codifying, and thereby making more comprehensible and accessible a number of previously disparate common law and statutory powers enabling the court, where appropriate, to sit in private and to control the extent to which information about proceedings before the court might be made public, in the press in particular, as well as of introducing some new, additional powers: see, for example, CPR 5.4C(4).  Under the previous High Court rules, the RSC, the court had no power (no express power at least) to order “on the application … of any person identified in a statement of case” that a “non-party may not obtain a copy of a statement of case” or restricting “the persons or classes of persons who may obtain a copy of a statement of case”.

One respect in which I agree entirely with what Ian Hislop has said – indeed I would go even further than he has – is that things have now reached a point whereby, in the field of misuse of private information, to put matters colloquially, pre-publication interim injunctions are, by and large, where the action is.  This is not just so in terms of my experience as a lawyer (although it is), but also in two other particular senses.

First and foremost, interim injunctive relief is the principal and most important remedy in this field of law.  This is so, I think, in the following circumstances:

  • Sometimes the intended target of a press intrusion will not get wind of what is going on before the intrusion has taken place.  But in cases where he or she does discover what is about to happen, the fight, if there is to be one, is much more likely to be at the pre-publication stage than at trial.  This is because, as Mr Justice Eady put it in his judgment in the Max Mosley case, “Once the cat is out of the bag, and the intrusive publication has occurred, most people would think that there was little to gain” ([2008] EMLR 20, at [209]).
  • Furthermore, where an application for an interim injunction is made, the result of the application is liable to be determinative of the whole case.  If, for example, the application is refused, and the relevant material is published, the claimant is unlikely to want to fight on to obtain damages.  Doing so would mean a public trial at which not only every aspect of the intrusive information at issue but every aspect of the claimant’s private life in general would be liable to be picked over in the full glare of publicity, inevitably exposing the claimant to an even greater degree of intrusion than was caused by the original intrusion complained of.  In short, there are unlikely to be many Max Mosleys.
  • Conversely, if an application is made and an interim injunction granted, experience suggests that media respondents tend not to want to fight to trial for the right to publish material whose moment has passed.  Moreover, in most cases a judge will have already decided that the case against them will probably succeed.  Unless there is perceived to be some serious point of principle at stake, the media tend to compromise such cases… and move on the next footballer or X Factor contestant …
  • In passing, it may also be noted that the proposition that ‘interim injunctive relief is the most important remedy in the field of misuse of private information’ lies at the heart of Max Mosley’s pending application against the UK government to the European Court of Human Rights in Strasbourg.  Mr Mosley submits that the media should be under a legal obligation to notify the intended victim of a potential intrusion before it occurs.  His complaint is that “the UK has violated its positive obligations under Article 8 of the Convention by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of the materials”.  In support of his complaint, Mr Mosley is arguing, under Article 13 of the ECHR (which guarantees ‘an effective remedy before a national authority’) “that there was no effective domestic remedy open to him.  Although the court found a serious breach of his right to respect for privacy and he was awarded damages, this award was not able to restore his privacy to him.  He contended that only the possibility to seek an interim injunction prior to publication could constitute an effective remedy in his case”.  Watch this space…

Pre-publication interim injunctions are also ‘where the action is’ in the second sense that applications for such injunctions are apt to produce the starkest of clashes between privacy and free speech, that is to say, between conflicting, indeed, irreconcilable rights and interests.  As Lord Justice Hoffmann recognised in the 1994 case of R v Central Independent Television plc [1994] Fam 192 (a case which concerned the exercise of the court’s inherent jurisdiction to protect children from harmful publicity and also, as it happens, the case in which Lord Justice Hoffmann famously stated the view that freedom of expression was a ‘trump card that always wins’) these conflicting rights and interests are not readily commensurable.  As Lord Justice Hoffman observed:

“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest….The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five year old girl weighed more heavily with Kirkwood J. than the television company’s freedom to publish material which would heighten the dramatic effect of its documentary.  This is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction.”

In short, where an interim injunction is sought by an individual to prevent a newspaper from publishing material which, if published, would clearly be seriously intrusive, and the injunction is granted, the effect of this, in substance, is to prevent the newspaper from publishing its story at the point in time it wants to publish it.  On the other hand, where an interim injunction is sought in such circumstances and the application is refused, this may entail untold, potentially devastating, damage and distress for the individual in question which is, in truth, irreversible and irreparable.  In particular, if the newspaper proceeds to publish, the relevant private information cannot be taken back out of the public domain.  As Mr Justice Eady stated at [236] in his judgment in the Mosley case in deciding to award the claimant compensation in the sum of £60,000:

“It has to be recognised that no amount of damages can fully compensate the Claimant for the damage done. He is hardly exaggerating when he says that his life was ruined. What can be achieved by a monetary award in the circumstances is limited.”

Importing a test often considered in non-media injunction cases, the ‘balance of injustice’ test: which party, the applicant or the respondent, will suffer the greater injustice if it turns out that the judge got it wrong at the interlocutory injunction stage?  Surely, in most cases where the claimant’s Art 8 rights are engaged in some serious way, the answer is going to be the claimant?

In these circumstances, it would be a robust judge who dismissed an application for an interim injunction on the basis of an invocation of the public interest in free reporting, before the rights and wrongs of the case have been fully investigated, when refusal of an injunction might have potentially devastating consequences for the claimant.  These days, Articles 8 and 10, when in conflict, are said to have – in theory at least – ‘presumptive parity’; “neither…has as such precedence over the other”, as Lord Steyn put it in Re S (A Child) (Identification: Restrictions on Publication) ([2004] UKHL 47; [2005] 1 AC 593).  The day of trump cards is supposed to be over.  But is this the reality?

While the threshold test set for the grant of such injunctions by the House of Lords in Cream Holdings Ltd v Banerjee ([2004] UKHL 44; [2005] 1 AC 253), namely that the claimant would ‘probably succeed at trial’, is said to be a “particularly high one”, the court is not obliged to apply it in every case.  As Lord Nicholls stated in the Cream Holdings case at [22]:

“In general, that [i.e. ‘more likely than not’ to succeed at trial] should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Article 10 and any countervailing Convention rights.  But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite.  Circumstances where this may be so include…where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the Court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”

In practice, at the interim injunction stage at any rate, is Article 8 not now the ‘trump card’?

© Godwin Busuttil 2009

Godwin Busuttil is a Barrister at 5RB

This post is based on a talk given by the author at the JUSTICE / Sweet & Maxwell conference, Free Speech v Privacy – The Big Debate, held on 1 December 2009.