An article by David Leigh in yesterday’s “Guardian” entitled “Superinjunction scores legal first for nameless financier in libel action” led to a flurry of online discussion about the case of ZAM v CFW. This is a case in which – as we discussed in a post earlier this month – Mr Justice Tugendhat granted an interim injunction to restrain the publication of defamatory allegations and also made an anonymity order. The online interest was generated because, in his article, David Leigh wrongly described the order as a “novel extension of controversial super injunctions“. The order was indeed “novel” – as discussed in our post a reasoned anonymity order has not previously been made in a libel action – but it was not a “super injunction” at all.
As David Leigh points out, the order followed threats on behalf of ZAM’s relations to publicise accusations against him globally on the internet. ZAM told the judge the allegations were “entirely false” and he was being blackmailed. It appears that the allegations have surfaced on the internet, having been posted abroad. Their reproduction in the English media would frustrate the terms of the order and would undermine the protection of an apparent blackmail victim.
David Leigh’s criticises Mr Justice Tugendhat’s order – citing “fears” that it “may allow a flood of wealthy libel litigants to seek secrecy injunctions against the media“. It is not clear whose “fears” are being referred to. They are unfounded. As Mr Justice Tugendhat – a judge with a track record of scepticism about the need for anonymity – made clear in his judgment, this was a highly unusual case. It involved serious defamatory allegations which the defendant did not seek to prove and which were apparently made for the purposes of blackmail. These circumstances are unlikely to be reproduced any time soon and the suggestion that a “flood” of litigants might take advantage of such orders is, at best, fanciful.
The prevention of the circulation of false allegations by a blackmailer is generally thought to be entirely consistent with the public interest. The publication of the identity of blackmail victims is routinely forbidden by the criminal courts. This was not a “super injunction” – in the sense of an order that forbids the reporting of its own existence. A full public judgment was given and its available online. There is, presumably, a public court order.
The “Guardian” article was discussed by Carl Gardner on his excellent “Head of Legal” blog. Among other things, he says this
I don’t know anything about ZAM or this case beyond what’s in the judgment. But based on that, there’s no reason to think this is an outrage of any kind.
If you think the law has any business at all protecting reputations – and most people agree, once they think about it, that you should not just be free to spread seriously damaging claims about others without any justification – then a case like this seems to me a pointer to a better future, not a worse one”.
As an interesting footnote we draw attention to a Canadian case noted in our weekly round up on 14 March 2011. In A.B. v. Bragg Communications Inc., 2011 NSCA 26 the Nova Scotia Court of Appeal dismissed an application against the refusal of an anonymity order in a defamation action. The plaintiff was a teenager, victimized by on-line bullying who sought to be permitted to pursue an action in defamation whilst concealing her identity through the use of a pseudonym. The Court of Appeal held that
“Defamation is a claim that one’s reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law. A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy”. 
It should be noted, however, that the AB case lacked the “blackmail” element which was present in ZAM. It seems to us that, absent blackmail, an English court would endorse and follow the above statement of the law.