The report of the Neuberger Committee on super-injunctions is due out tomorrow.  It can confidently be predicted that it will not satisfy those elements in the media which have been campaigning against privacy injunctions.  The committee was set up to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions’”.  It cannot, and will not, recommend changes in the substantive law.   

It particular,the Committee will not change the legal principles which apply to the grant of privacy injunctions – it will remain illegal to publish private information when there is no public interest justification for doing so.  This will obviously disappoint those who make their living trading in other people’s private information.   It seems unlikely that the Committee will even make recommendations about changing the substantive law.  This is the role of the Law Commission rather than an ad hoc committee of this kind.  On the question of reform of the law, we note that the Justice Secretary, Ken Clarke have given a cautious welcome to the idea of privacy legislation, saying in answer to Parliamentary questions on Tuesday 17 May 2011 that

“it is probably right that Parliament passing a privacy Act might well be the best way of resolving the issue, but we need to get somewhat nearer a consensus and to know exactly how we are trying to strike the balance before something is submitted for the judgment of Parliament. We may well not have to wait until the end of a long, controversial process such as that, and instead find some other way of tackling the issue, but we are considering it and we will come back with proposals in due course“.

The Justice Secretary himself drew attention on Tuesday to the fact that the Neuberger Committee is looking at the “procedural aspects” of injunctions.  The precise areas which it will cover have not been made public but it seems likely that recommendations will include:

  • arrangements for the gathering of proper statistics in relation to the number of privacy injunctions applied for and granted;
  • a “standard form of privacy injunction order”
  • additional “pre-notification” requirements in relation to those third parties likely to be served with orders.

The first is long overdue.  Press reports of the number of injunctions in force range from a modest 30 (a clear underestimate) to an remarkable 800 (an obvious and gross overestimate).  It seems likely that the recent figure of 77 in 5 years is closer to the mark – although this will not include injunctions not served on the press.

The second is a sensible reform – although the form of typical order made by the courts has changed substantially since the Neuberger committee was established and there is a risk that the standard form will be out of date before it comes into force.

The third is something which the media has long campaigned for.  It gives rise to a number of practical difficulties – the pre-notification of a story concerning private information necessarily involves the further dissemination of that information and the risk of it being misused even before the injunction has been applied for.  If the Committee goes down this route it will be interesting to see how it addresses this practical problem

One final point about procedural reform.  Each additional requirement for “notification”, further hearings and additional evidence inevitably increases the cost of privacy injunction applications.   There is, inevitably, a danger that the campaign for “open justice” will mean that justice is no longer available to anyone other than the super-rich.   Some claimant lawyers have suggested that this is the true purpose of the media campaign in this area.   We are not so cynical but the Courts have long recognised the need for balance in this area and we trust that the Neuberger Committee report will acknowledge and recognise the importance of cost effective privacy protection.