We have already discussed the Report of the Neuberger Committee on Super-injunctions published on Friday 20 May 2011 (see our post here). It contains a balanced and thoughtful analysis of the issues, making a series of modest and carefully considered proposals. As a result, it has not been welcomed by the some sections of the press which appear to want total judicial capitulation to their interests.
The “Daily Mail” can be taken as a typical example of this kind of reaction. In a “comment” piece it told its readers that this is a “dark day for open justice” and that the committee (which included two senior newspaper lawyers) had
“delivered a chilling exercise in judicial activism, self-delusion and – most worrying – a constitutional attack on Parliamentary sovereignty and free speech … the report seeks to absolve the courts of any blame for the fact that barely a week passes without a celebrity with a carefully-cultivated family image winning a secrecy order to hide his adulterous behaviour”.
The “Mirror” was among a number of papers which highlighted Lord Judge’s measured comments about the role of MPs
“you do need to think, do you not, whether it is a very good idea for our law makers to be in effect flouting a court order just because they disagree with the order, or for that matter because they disagree with the law of privacy which Parliament has created. It is a very serious issue, in my view. There has never been any question in any of these orders – not in any single one of them – of the court challenging the Sovereignty of Parliament”.
The “Sun” also dealt with Lord Judge’s comment under the headline “M’Ludicrous; Judges blast MPs on gagging; Storm at free speech threat“.
The reaction of other newspapers were slightly more measured. The “Guardian’s” headline writers seemed to have been reading the Mail – the headline was “Superinjunctions granted far too readily, judges say” but it was followed by a balanced article. The paper also highlighted the “challenge” to use of parliamentary privilege but described the main recommendations of the report in neutral and measured terms. The “Independent” had a leader entitled “Judges and media still move to different beats” – which appeared to be based on the erroneous premise that the Committee consisted entirely of judges. It suggested that there was “an air of complacency” and criticised the views of Lords Judge and Neuberger at their press conference on social media as being “supremely high-minded or blissfully out of touch“.
The Neuberger report has given the media some of what it wants – in particular, pre-notification of injunction applications and confirmation of the already existing position (as discussed on this blog) that “super-injunctions” are effectively dead. But, as is plain from the reporting we have mentioned, this is highly unlikely to be enough. The tabloid media wants an end to privacy injunctions of all kinds – back to the good old days of kiss n’ tell, trading off threatened sex stories for media cooperation and all the traditional methods of the popular media. In this endeavour it is backed by a number of headline hungry politicians who can now invoke the ancient privileges of parliament in support of the constitutional right to publish tittle tattle. Far from ending the battle between media and judiciary the Neuberger Report seems to be in danger of opening a second, parliamentary, front. The next few weeks may demonstrate whether this leads to truce or constitutional crisis.