On Friday 6 May 2011, the “super-injunction saga” took a new twist: one MP had accused another of having “taken out a super-injunction”. The press headlines were clear “MP takes out super injunction, another MP claims” (the Mirror), “MP granted super-injunction” (the Independent, “MP accused of hiding ‘own shame’ behind a super-injunction” (the Guardian). As usual with press reporting in this area, the reality is very different. We have no information about the facts of the case and we do not know whether or in what terms an injunction has been granted. We can only go by what is in the public domain. On that basis it is clear that not only is there no evidence that any MP has, in fact, taken out any injunction – whether “super” or even just “Clark Kent” – there is not even any suggestion that this has, in fact, taken place. At best, there are rumours.
Let’s begin with what was said in Parliament. On Thursday 5 May 2011, the Conservative MP for Hendon Matthew Offord said
There has been much public discussion about the increasing use of super-injunctions and the ability of judges, rather than elected parliamentarians, to decide policy. Is the Leader of the House aware of the anomaly this creates if, as has been rumoured, a Member of this place seeks a super-injunction to prevent discussion of their activities? May we therefore have a debate on the use of super-injunctions, and not leave the issue to the Joint Committee on the Draft Defamation Bill, which cannot address these concerns?
We will put aside the misinformed first sentence – as we have pointed out previously on this blog there is no “increasing use of super-injunctions” and judges are not “deciding policy”, they are deciding cases (which is their job).
But note the highlighted words in the second sentence. First, Mr Offord refers only to rumours – he is not suggesting that he has any evidence. Second, he refers to an MP “seeking” an injunction – in other words he does not actually say that this MP has actually been “granted” an injunction.
Mr Offord subsequently told the “Daily Telegraph” that the application related to a “personal matter” and that he is planning to confront the MP next week. He said:
“I have heard about this from two different sources. I’m very keen to see that MPs aren’t seen to say one thing in public then behave in a different way in private. I feel that people shouldn’t be abusing these super-injunctions. I will speak to them and find whether the injunction has been taken out or not. If it has I will tell the MP that they are being hypocritical.”
In other words, Mr Offord confirms that he has no direct knowledge of the case at all and does not even know whether an injunction has been taken out.
This is all a bit thin. The not always reliable political blogger Guido Fawkes, had a post entitled “Guido Knows Name of MP with an injunction, All too well” – this showed a redacted order of 17 March 2011 (pictured above). This did, indeed, involve a sitting MP – Mr Zac Goldsmith. We know because, on 22 March 2011, Mr Justice Tugendhat gave a public judgment (Goldsmith v BCD [2011] EWHC 674 (QB)) naming the MP and explaining the circumstances in which the injunction was granted. Mr Goldsmith’s sister, Jemima Khan, tweeted about this. So it wasn’t Mr Goldsmith. And it may not have been anyone at all.
It is perhaps worth revisiting some basic points to put this debate in context.
First, if a “super-injunction” (or any other kind) has been taken out then it is likely that its purpose would have been to prevent publication in the press. In order to do this it would have been necessary to serve the injunction on the newspapers. In other words, the newspapers will know, one way or the other, whether this story is true. If it were true then they would be breaking the terms of a “super-injunction” by referring to it. If the story is untrue they are misleading their readers by saying it has been granted (or, at the very least, by describing it as a “super-injunction”).
Second, if the injunction (of whatever kind) has been granted the press will know its terms and can obtain the evidence put before the court in support of it being made (all injunction orders contain such a provision). They are always entitled to apply to vary or discharge the order. If they have not done so then we can assume that the order is not hiding wrongdoing or hypocritical behaviour. If such behaviour had been involved it is highly unlikely an injunction would have been granted at all.
Third, it is difficult to understand how Mr Offord can be so clear about his charge of hypocrisy. Let’s consider a possible scenario. There is an injunction and that it restrains the publication of the contents of the MP’s stolen lap top computer which contains personal emails, photos, financial information and so (a situation which has arisen, in practice, a number of times in recent years, though not in relation to MPs). How is that hypocritical? What possible basis can there be for mentioning it in Parliament or anywhere else?
It is, of course, possible that the MP being referred to has sought and obtained an injunction to restrain the publication of a some sexual indiscretion – having presented himself to the electorate as a promoter of family values. Although “possible” this is highly unlikely because is difficult to imagine that any judge would grant an order if those facts were put before the court and, if they had not been, the media would be making an immediate application to discharge. In this possible but unlikely situation Mr Offord’s charge of hypocrisy would be made out. There are, however, a whole range of other possibilities in which no hypocrisy would be involved and an injunction would be perfectly proper.
Wouldn’t it have been sensible and responsible for Mr Offord to have made his inquiries of the MP first? Or is the desire of the MP to gain column inches by repeating the evil words “super-injunction” just too hard to resist?
There are a number of misrepresentations in your article which is suprising in an article that, in turn, criticises others for inaccuracies
Firstly, this is simply not true:
“First, if a “super-injunction” (or any other kind) has been taken out then it is likely that its purpose would have been to prevent publication in the press. In order to do this it would have been necessary to serve the injunction on the newspapers. In other words, the newspapers will know, one way or the other, whether this story is true. If it were true then they would be breaking the terms of a “super-injunction” by referring to it. If the story is untrue they are misleading their readers by saying it has been granted (or, at the very least, by describing it as a “super-injunction”).”
If you will recall this was precisely the issue over the Trafigura super-injunction. An MP named the company in the House of Commons and Trafigura attempted to prevent the Guardian from reporting this by claiming that it would breach the superinjuction and would so be contempt of court.
It has been established that the reporting of parliamentary proceedings cannot be contempt of court for all kinds of reasons. While the Guardian initially held off from reporting the question until they had challenged the attempt to bar them, they published as soon as the lawyers for Trafigura dropped their challenge. Had they not done so they would a) have lost and b) faced an investigation for contempt of parliament.
So, while you are correct to say that reporting the existence of a super-injunction IS contempt of court, the reporting of parliamentary proceedings that mention the super-injunction is not.
Secondly it is inaccurate to say that a super-injunction cannot be obtained to hide wrongdoing or hypocritical behaviour. As with the current furore about super-injunctions, a quick Google search shows numerous examples where they have been obtained to hide behaviour that fits both those categories – in fact, it appears that most of them have been obtained for just that purpose. I have yet to see any super-injunctions preventing the reporting of a Premiership footballer’s devotion to selfless charity work…
Thirdly, the example that you have given for a appropriate super-inunction makes little sense. If someone stole my laptop and tried to sell my emails then a straightforward injunction would be fine as this would block the publication of the contents. Why would I need to hide the fact that I had obtained an injunction? Why would a news article saying “MP Bert McErnieson had his computer stolen and someone tried to sell his emails” require blocking?
Clearly the point that Mr Offord was trying to make, as is clear from his question, was that the House of Commons is likely to look at privacy laws and super-injunctions in the very near future. It seems entirely correct and proper for him to point out that a Member of that House has a personal interest in the outcome of the discussion. In fact, that is precisely what I want and expect a responsible MP to do.
There seems to be a number of confusions here.
First, the newspapers are not just reporting parliamentary proceedings but are themselves discussing the alleged “super-injunction”. The suspicion must be that they feel free to do so because they know it does not exist.
Second, none of the injunctions you mention are super-injunctions and, as examination of the judgments of the court will show, none of them are hiding wrongdoing or hypocritical behaviour.
Third, the example given in the post concerns an ordinary injunction – that is one that can be reported (not a “super-injunction”). There is a trade off between name and details. If the name is given then very little could be said about the type of information involved. The information is detailed then the name cannot be given. The point that was being made was that Mr Offord appeared to be criticising a colleague without knowing the facts.
Your final point is difficult to follow. If an MP joined in a debate about super-injunctions (or anything else) without declaring a personal interest then it would be proper to criticise him (or her). At the moment there is no debate and no suggestion that anyone has failed to declare an interest. It is difficult to see how the repetition of rumours by Mr Offord served any public interest of any kind. It is noteworthy that, a week later, he appears to have said nothing more on the subject. Wouldn’t the responsible thing be for him to clarify the position one way or the other?
Thanks for your reply – I’ll address your points in the same order as you do.
Firstly, again, the Trafigura super-injunction demonstrates that your point is not correct. Not only was the super-injuction discussed following the parliamentary question, but specific details were also discussed. Consider this link here:
http://www.guardian.co.uk/commentisfree/libertycentral/2009/oct/14/trafigura-fiasco-tears-up-textbook
In this article specific details of the injunction were discussed. At this stage there was no question that the super-injunction existed and was still in force – it had only been varied so as make clear that mentioning the parliamentary question was permitted. So at this stage, discussing the super-injunction would still be contempt of court, exccept where this related to the parliamentary question. You will note that the article was published fully five days before the super-inunction was lifted, discusses the super-injunction, the parties involved and the nature of the information protected by it. Yet no contempt of court proceedings were bought against the Guardian. Clearly, therefore, a parliamentary question revealing the existence of a super-injunction opens the flood gates on what can be discussed.
It’s also worth noting that this is all a bit academic. In much the same way that saying a Premership footballer has a super-injunction is not a breach of that injunction, saying an MP has one would also not be a breach of that injunction.
Secondly, I didn’t actually mention any specific super-injunctions but I was referring to, for example, the one taken out by a Premership footballer to prevent the publication of details about his relationship with Imogen Thomas. Obviously this is just to protect him against allegations of both wrongdoing and hypocritical behaviour so it’s difficult to see why you say that they are not?
Unless you are saying that these are not super-injunctions because it is not forbidden to discuss their existence, merely the person who took them out? That would be a valid comment but I think that the average person these days would regard both of these as being super-injunctions, so I think it safe to refer to them both as such.
Thirdly, the example I was giving was in response to your example of reasons why a super-injunction may be appropriate in circumstances. I was just trying to point out that I couldn’t see why the existence of an injunction that prevented the publication of stolen, personal, non-embarrassing data should be kept secret. I could understand if it had become publicaly clear that the injuncted informaton revealed the MP as an avid molester of donkeys – that would be obviously be damaging to him even without the release of the actual information. But that would then surely be concealing evidence of wrong doing.
Essentially, the only reason I can see that the MP would want to keep details of the injunction secret is if it’s very existence was embarrassing to him, and that has embarrassing wrong doing written all over it…
The final point that I was trying to make was that, unless existence of the super-injunction was mentioned in the House, it couldn’t be reported. So how would we know whether the MP acting correctly?
Imagine that during a debate on privacy laws, the MP with a super-injunction stood up and made a passionate defence of these laws and indeed advocated that they be strengthened.
You could easily have a situation where the press in this country could know that this MP was blatently advocating the law be changed for his own personal interest and yet be utterly unable to report this fact. This seems madness. I agree that it might have made sense for Mr Offord to check with the relevant MP first but, in principle, I wholeheartedly agree with what he did.
There are four basic points:
1. If an MP did have a super-injunction then the press would, by now, have applied to set it aside (as, indeed, they were going to do in Trafigura – a case about a stolen document, not about privacy at all). Bearing in mind the recent approach of the courts it is very unlikely indeed that such an injunction was ever made and, if made, remains in force. If the injunction was simply “anonymised” (not super) then the press would also have applied to set it aside – unless they took the view it was justified (and they would have mentioned it).
2. There is no suggestion that the premiership footballer mentioned is guilty of either wrongdoing or hypocrisy. In relation to the other anonymised injunctions look at the public judgments. In most cases where the press have been involved they have conceded there is no public interest.
3. If an MP has an anonymised injunction neither you (or Mr Offord MP) know why it was granted. Why assume it was for a bad reason before the facts are examined?
4. The question of whether an MP has a conflict of interest needs to be considered as and when it arises. The fact that this may (or may not) happen in the future is no justification for repeating rumours.
1. Assuming that one does exist, I would say that it is likely that the press have applied to overturn it. If it were a super-injunction then they wouldn’t be able to mention that they had done so, unless Mr Offord had mentioned that in the parliamentary question. Either way, the fact that they are mentioning it is no indication at all that it doesn’t exist. Which was my original point.
2. There have been plenty of stories identifying that that a married Premiership footballer slept with Imogen Thomas. Whether there is a public interest in that is neither here not there, it is clearly hypocrisy and wrongdoing. I’m not remotely interested in it myself but it is clearly designed to protect his image and nothing else.
3. The only reason that people try and prevent the publication of personal information is because that information is embarrassing. Otherwise what would be the point of blocking it? I agree that leaping to conclusions is unfair but inevitable.
4. It’s worth bearing in mind that Mr Offord neither named the MP or what was being injuncted. Assuming that the injunction does exist I think that it is essential that we, the public, be aware of this, especially at this time of heightened public interest.