Saturday, 17 October 2009

English Courts And Free Speech: A Paradox

At the end of a remarkable week for English law and freedom of expression, one is rather left with a puzzle.

Why are the English courts heroic and liberal when prising information - arguably of the most sensitive kind - from the government, when the same courts are so complacent and illiberal when preventing publication of information belonging to corporate entities?

Here I am thinking of the sheer legal brilliance of the judgment in the Binyam Mohamed case, where the judges - with great intellectual skill - demolish the submissions of the British government on the disclosure of US intelligence information; and I contrast this with what lawyer Mark Stephens rightly describes as the practice of English courts easily letting super-injunctions go through on the nod.

(Hear Mark Stephens on this podcast with fellow - and very highly recommended -legal blogger Charon QC.)

And so we have the remarkable situation where an English court will throw its weight against the publication in England of corporate information already in the public domain (albeit Wikileaks), and simultaneously in favour of disclosure of undoubtedly secret information known only to very few.

Had the Minton Report been provided to the UK government in strict confidence by the US government, it would appear that the English courts would this week have allowed its disclosure; but not if it was private information of a company to be published by The Guardian claiming the public interest, even when it was actually available to the world.

There are many reasons for this paradox, some of which come down to technical points as to the types of law and procedure involved; but the one which comes first to my mind is that the English courts are not (yet) in the habit of placing sufficient and consistent emphasis on the right to free expression.

And on this point, please kindly click over to the The Guardian website to see my first article for that great liberal institution, where I discuss the issue of free expression and English courts in the context of libel reform.


Alice said...

That's just what I'd been thinking, not so clearly or with so much evidence as you of course - it seems to me that the government value corporations more than government itself. Will Tesco, Trafigura etc one day make all our laws? I expect we'd have to pay them for permission to buy food or similar . . . oops, better get out of here before I get sued :D

Niklas said...

Thank you for another very interesting and thought-provoking post. (The Guardian article is good too.)

I think Nick Cohen made a very good point at the Sense about Science fringe at the Lib Dem conference when he said that the British judiciary was Whig, not liberal. In other words, they are instinctively critical of the state but still have a conservative, perhaps paternalistic, idea of what proper behaviour is between members of society. Hence their distaste for "prying" journalists, perhaps?

But as you point out, there is no good reason to rule in such a contradictory fashion. Companies, especially but not only public limited companies, are hardly "private citizens" in any sense. For PLCs the shareholders deserve to know what is going on in their name, and those who do business with any company deserve to know if they have a history of bad dealings.

Niklas said...

Could I also repeat one of the questions I e-mailed you a few days ago? Legally, does publishing a link (URL) to a document on the internet constitute publishing that document?

In other words, were the Twitterers who linked to the Minton report in contempt of court until the injunction was modified?

Nick said...

If you read Carter-Ruck's letter to the Speaker the answer, in relation to Trafigura at least, seems to be clear:

The Guardian consented to the original injunction.

Dr. Brian Blood said...

This will certainly interest those following the discussion on the UK as 'libel' capital of the world.

I hope this means it can only be a matter of time before the English (and Welsh) law of libel is refined.