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”. [80]
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.
It’s irritating to be criticised for attacking anonymity by a legal blogger who remains anonymous himself. The order in question forbids disclosure of “any information concerning the subject matter of these proceedings” and “any information that…might identify the applicant”. In my view, that is a form of super-injunction – and an unwholesome one. The judge has gone too far in swallowing the analogy with criminal blackmail cases, and perhaps opened the way to abuse. The anonymity there allowed is because the blackmailer threatens to reveal TRUE information. In libel, the information is claimed to be FALSE. So the libel litigant should not be entitled to anonymity.
The order is not a form of “super injunction” as it does not prevent publication of information as to its own existence. You have omitted part of the provision about the publication of information. The full paragraph refers to
“any information concerning the subject matter of these proceedings save for and limited to that contained in any public judgment of the Court“.
There is a public judgment setting out the background to the order and explaining why it was made.
Blackmail is not about “truth” – it is committed where a person makes “any unwarranted demand with menaces” – the menaces can be a threat to publish true allegations but also a threat to publish false ones which may gain wide circulation and be believed on the “no smoke without fire” basis.
The order in ZAM is very unusual but, it seems to us, a proper use of the Court’s powers. The public judgment with the lack of the “super injunction” element means that these issues can be publicly debated. We assume that this was the judge’s intention when he gave such a judgment.
1. The so-call “public judgment” in fact managed to conceal both the specific allegations, and the identity of all the parties. It refers only vaguely to ‘misappropriation’ and ‘a serious offence’, as I recall.
2. This is not a case of criminal blackmail. It is supposed to be a civil case of libel. Loose references to ‘blackmail’ are an undesirable form of mission creep. If the blackmail threat in a criminal case is to publish falsehoods, then I can’t see why anonymity would be ‘necessary’ in such a case
The imposition of excessive secrecy just because it seems like a good idea at the time, is what opens the way to future abuse. Just wait and see! I see no reason of ‘necessity’ why the judge could not have identified the parties, whilst suppressing the specific allegations. [declared to be apparently false] This would have had the added public interest of identifying the alleged blackmailers. As it is, this event [as distinct from the abstract “issue”] cannot be properly debated.
The point made in our post was that this was not a “super injunction” – which you now appear to accept. There are a number of public interests in play and there is a proper debate about how they should be balanced. The “Guardian” has intervened in a number of recent cases to argue its case for a particular approach to anonymity and openness – giving names but no details. You appear to suggest a similar approach in this case. The difficulty with that approach is that the public is then left entirely in the dark about what is going on – they have the bare name and nothing else. These arguments have been considered by the courts which have, in general, favoured details but no names. This debate is not moved on by referring to every court order which provides for anonymity as a “super injunction”.
The article gives rise to another important point about the use of the internet to frustrate court orders. The use of the internet to evade the effects of court orders undermines the rule of law. On any view, the public interest is not always served by posting prohibited material on blogs outside the jurisdiction
In relation to your specific points
1. There is a public judgment – which contains a lot of detail about the nature of the threats made and states the general nature of the allegations. On the assumption (which has not been challenged) that they are false, why should they be repeated?
2. There is no such thing as “civil blackmail”. This is a civil case in which the conduct of one of the parties appears to constitute the criminal offence of blackmail. The purpose of anonymity in blackmail cases is to encourage victims to come forward rather than give in. A person may be just as afraid of the publication of false (but apparently convincing) statements as he is about the publication of embarassing truths.
The judge explains in his judgment why he did not identify the parties. These reasons may or may not be good ones – they are not actually discussed in your article at all. It is easy to cry “risk of abuse”. It is more helpful to look at the specifics. We have emphasised the highly unusual nature of this order in our posts – and referred to the obviously correct general principle that libel litigants are named. Whether this is one of those very rare cases in which this principle should not apply is what, we think, should be discussed.
It is common ground between us that the issue here is whether or not, in a rare case, libel litigants should be granted anonymity.
The reasons given for anonymity in the judgment – as I actually explained in my Guardian article – were that the judge adopted the claim [unchallenged by the other side who were absent, or by the media who were not invited to be present] that it would be disagreeable to the claimant if there was publicity of any kind about his resort to litigation in an apparent family dispute about money.
I don’t regard that as a ‘necessity’ to justify derogation from open justice. It was merely a benefit Farrars attempted to obtain for their client. There’s no reason to think he would have been deterred from exercising his rights by lack of anonymity.
People should know who is going to court and getting penal orders against other people!