Pages

Monday, 19 October 2009

Are Superinjunctions Always Wrong?

A superinjunction, explains my learned friend Mr Charlie Brooker, can be defined as follows:

"A super-injunction is an injunction that prevents you from telling anyone that an injunction exists."

I would like to explain why it may be that such superinjunctions may be appropriate for the court to grant in certain circumstances.

In doing so, I would like to set out two situations [A] and [Z] which may serve as parameters of this discussion.

Situation A

An international multimillion corporation seeking a superinjunction to prevent publication of the information that there is an injunction preventing publication of a professionally-prepared report in respect of a major incident which involved the health and safety of large numbers of people.

Situation Z

A non-public figure, perhaps involuntarily caught up in a news story (such as Colin Stagg, Robert Murat, a former boyfriend of Stepehen Gateley, or a relative of a crime victim) seeking a superinjunction to prevent publication of the information, which has no public interest, that a prior injunction exists which prevents disclosure of information about their sexual preferences or practices.


Like any liberal person, I would not think Situation A - the Trafigua scenario - warrants a superinjunction. Every element of that situation tells against a court exercising its discretion to grant such a super injunction.

But what about Situation Z?

Well, in my view, purely private information, where there there is no public figure involved or public interest in the information, should have the protection of a superinjunction.

It would defeat the very privacy rights of that individual for a newspaper - and lets imagine this information now in the hands of Jan Moir rather than Alan Rusbridger - to publish that there was an injunction about someones sex life, even if the exact details of that sex life are not actually published.

Superinjunctions are quite novel, brought about mainly by the Human Rights Act 1998 and giving of effect in English law of Article 8 of the ECHR, which protects privacy.

In my view, measures should be adopted by the court, or be legislated for by Parliament, which makes it that such superinjunctions are available in situations towards Situation Z, and not Situation A.

For, in Situation Z, thousands of well-intended online complaints to the PCC are simply too late; the dignity and privacy of the non-public (and human, not corporate) figure on a matter of no public interest have already been destroyed by the likes of poisonous Jan Moir.

Just imagine Jan Moir with the information that there exists an injunction about YOUR sex life...

16 comments:

ascorbic said...

I wonder what twisted logic convinced a judge that corporations have human rights.

Kate said...

A few of your posts seem to bring up the issue of corporations etc being legal persons (I'm sure I remember this cropping up in one or two of your posts about libel law). Personally I'd be pretty interested in a blog post about legal personality as a general concept. That's a very vague (and no doubt large) request to make I know, but then if I could be more specific I probably wouldn't need to ask you to write about it!

Oliver Townshend said...

Isn't an injunction equity? And doesn't equity require clean hands? Or is my year 1 Uni Law out of date?

Kris said...

erm, I'm not sure I understand how article 8 applies to either Jan or Trafigura.

Isn't the ECHR about the relationship between the citizen and the State? The Government wasn't trying to hide the Minton Report - Trafigura was.

As for the loathsome Jan Moore - she's a reporter - their job is digging dirt, and apparently, indulging in baseless speculation. That is different to the Government digging dirt.

As far as I'm aware, "super-injunctions" are a lawyer's creation, rubber-stamped by the Court. Time for Parliament to intervene.

David Waldock said...

If Jan Moir had the details of my sex life, it would make for an incredibly boring article...

Philip Potter said...

If it is a wrong act to violate someone's privacy, let that act itself be punishable.

It is wrong to murder someone (and violates their right to life). But we don't restrict people's freedoms to the point that they are unable to commit murder; we instead assure them that should they commit murder, the full force of the law will come down upon them. This is the balance between preventing wrongful acts and assuming innocence.

What makes privacy different? I agree that once privacy has been violated the damage cannot be undone, but this doesn't make it significantly different from many other wrongs that one can do against a person. I don't see why preemptive action is justified for privacy breaches but not for criminal offences.

As I see it, the real problem is that there is no punishment for violating someone's privacy with no public interest. The PCC doesn't protect people's privacy (see Nick Davies, Flat Earth News, for an excellent account of why not). If it did, perhaps newspapers would think twice about violating someone's privacy the way they think twice about libelling someone today; then we wouldn't need superinjunctions.

Besides this, how would a superinjunction protect an ordinary person who does not employ their own lawyers and PR team, who is in the media before they realise anything is going on? There is no way they could get a superinjuntion before the papers print a story if they have no idea the press were after them.

Given the damage they can do, and how tenuous they are as a solution, I would rather see no superinjunctions at all.

Benjamin Gray said...

@Oliver:

I don't think it does because the "clean hands" maxim in Equity is of limited application. It is there to prevent remedy (here, an injunction) where the party relies on an illegal act to establish its necessity (Tinsley v Milligan). In this case Trafigura does not have to rely on any such illegality. They have yet to be found liable (or not) in this case. Publishing the report then would damage them regardless of the actual verdict, so there is insufficient dirt on their hands to prevent the injunction being granted.

Someone more qualified than I please correct me if I'm wrong.

(This is similarly based on my in-progress law course, so I could have completely misread things.)

Benjamin Gray said...

Phillip Potte:

actually, we do. You can be banged up for attempted murder, and injunctions can be granted to prevent one party from physically harming another.

SomeBeans said...

The first rule of super-injunctions: you don't talk about super-injunctions! Since my sample size of how super-injunctions are implemented is currently one, it's a bit difficult to think objectively about them.

Could Max Moseley plausibly have taken out a super-injunction?

Was Sarah Keays / Cecil Parkinson a super-injunction?

I can see that a newspaper simply stating that "We know something about SomeBeans, but we can't tell you what it is because he's taken out an injunction" could be damaging to me because it would lead to endless speculation about exactly what I might have done but for a private individual would this be newsworthy?

It's an interesting question, which would be helped if there were at least statistical information about super-injunctions currently in force / granted.

Scote said...

"Actually, we do. You can be banged up for attempted murder, and injunctions can be granted to prevent one party from physically harming another"

And seeing as how physically harming one another is already a crime such an injunction is based on a flawed premise, that somebody who would break the law would, er, pay attention to the law.

Anyway, I'm not one for such almighty powers of secrecy, even in the name of protecting individuals. I think super injunctions are wrong in both of your examples. It is just too big a hammer to wield. The excuse for all such legal weapons is that they will only be used for good, but I don't think you can really rein in such a powerful, rights destroying beast, a legal gag that comes with a hood to go over the gag. Arguing for the individual case reminds me of when people try to pass massively orwellian laws using hot button issues to bypass our critical thinking skills, saying "just think of the children."

I think we should steer away from secret government, secret laws, secret arrests, secret detentions, secret trials--and in the case of civil law, we should stay away from secret injunctions.

Benjamin Gray said...

To give another example, consider that you [X] might be going through a messy divorce with an abusive partner [Y], during which you obtain a non-molestation order (injunction) to prevent that partner [Y] assaulting, battering or otherwise intimidating you or your children.

Is it in the public interest to report the existence of this injunction, and "out" you as a battered partner? Is it fair on X's children, who might have to endure bullying from unsympathetic children? Should X have to carry the stigma attached to being a battered partner? Moreover, what if Y knows that publicising the injunction will make life more onerous for X, and constitute a form of intimidation in and of itself? Can you then, under those circumstances, say that the absolutely just thing to do is let the existence of the injunction be reported? Is there any good reason why anyone other than the parties and the court (and, possibly, some executive agencies) should know about the order?

Just because one high-profile super-injunciton had an iffy effect doesn't mean we should throw the baby out with the bathwater.

Benjamin Gray said...

Scote -

1. You're blurring the lines between criminal and civil law. Plenty of harms can be inflicted that are not criminal in nature, with the Tort of Defamation being the most obvious one here.

2. You're treating lawbreaking as if it is a status without incurring punishment. Sure, in the example I cited Y may break the terms of the injunction and loiter outside X's house to scare her, but with the granting of the injunction action can then be taken to stop him doing so. If no injunction were granted, then he'd be able to carry on anyway.

3. Applied to the executive, rather than the judicial sphere for the moment, your argument is eerily familiar to that deployed by the people who failed to lift a finger to help Fiona Pilkington and her daughter.

4. Should we also move away from a secret ballot?

ivan said...

"to publish that there was an injunction about someones sex life"

The above has three pieces of information (1) that there is an injunction (2) who it concerns, and (3) the nature of the information injuncted.

Is there not an intermediate situation where one could reveal the existence of an injunction, and possibly even who it concerns (if identification of an individual in relation to certain proceedings is not the information to be kept hidden), but not describe the nature of the information you are injuncted from revealing in detail? Certainly "We are injuncted by (specified person) not to reveal information concerning his sexual preferences" comes close to spilling the beans. But is not "We are injuncted by (specified person) not to reveal certain information in our possession" usually fairly innocuous, when (specified person) is already known to be associated with those proceedings?

Scote said...



Benjamin Gray said...
"1. You're blurring the lines between criminal and civil law. Plenty of harms can be inflicted that are not criminal in nature, with the Tort of Defamation being the most obvious one here.

Blurring the lines? No. I'm saying that secret government is to be avoided in both criminal and civil cases. That isn't blurring the lines. That is consistency.

"4. Should we also move away from a secret ballot?"

Now **that** is blurring the lines. In the case of secret voting we take steps to insure the integrity of elections, including making sure that only qualified voters vote and that their votes are accurately recorded. Safeguards include audits of equipment and procedures, election observers and recounts. However, you are estopped from complaining about secrecy in elections since you are against "blurring the lines"


"2. You're treating lawbreaking as if it is a status without incurring punishment. Sure, in the example I cited Y may break the terms of the injunction and loiter outside X's house to scare her, but with the granting of the injunction action can then be taken to stop him doing so. If no injunction were granted, then he'd be able to carry on anyway."

You are moving the goal posts. This is what you wrote and what I responded to:

Benjamin Gray said...
"actually, we do. You can be banged up for attempted murder, and injunctions can be granted to prevent one party from physically harming another. [emphasis added]

Your analogy was from physical harm to physical harm--not injunctions that make legal activities illegal for a specific individual alone. And once again, the efficacy of restraining orders is rather limited since if one merits a restraining order one may presume that the subject of the order is not respectful of the law.

Benjamin Gray said...

1. I'm not blurring the lines here as the state is not perforce involved in civil law. There is a demarcation. To denounce the result of an action between two private parties as "secret government" is ignoring the distinction.

Case in point, was the protection of the identity of a rape victim in R v R [1992] 1 A.C. 599 "secret government"?

4. First, you are looking to the form rather than the substance, which is rather ironic given that we're considering the rules of equity. The actual act of governing in a secret ballot is secret. Everything else is secondary. Second, I'm not the one complaining about "secret elections", you are by implication. Your position appears logically extreme; my point was that secrecy is sometimes necessary to guarantee the liberties of both the individual and wider society.

2. Are you seriously arguing for the abolition of restraining orders?

vp said...

You say that superinjunctions didn't much exist before 1998. In that case, it should be easy to point to cases similar to "Situation Z" from before 1998 where a non-public figure took out an injunction which was easily circumvented because the particulars of the injunction were public.

Are there any such cases?