Superinjunctions: no, that\’s not quite how it all works

The Prime Minister announced that he was setting up a committee urgently to consider how to address the issue, but he immediately came under pressure to act more swiftly and issue new instructions to the judiciary.

The law may well be an ass but that really isn\’t how it works.

Judges implement the law that the politicians have passed into law. If the politicians have managed to make some godalmighty cock up (as they have here) then the politicians don\’t get to just say \”No, do it differently\”.

They have to go back and change the laws that they themselves made in the first place.

Which is going to be very fun to watch as the tension here is between free speech, a free media, and the right to privacy.

The first is something we rather pride ourselves on, the second is a relatively new right implemented under the Human Rights Act. And if we reopen the HRA then all legislative hell could break loose.

But bak to the first point: if David Cameron were sufficiently stupid to \”issue new instructions to the judiciary\” I for one would love to see the response. For I would expect senior judges to abandon their Latin and resort to choice Anglo Saxonisms.

Politicians do not \”issue instructions\” to judges. They either change laws or they do not.

36 thoughts on “Superinjunctions: no, that\’s not quite how it all works”

  1. One point that matey MP bloke naming Giggs seemed to fail to grasp – Parliament makes laws, the judiciary interprets those laws, but individuals (including MPs and judges themselves) are then subject to that interpretation of the statute and must abide by it

  2. ukliberty,

    Has it been confirmed that the original injunction applied to an American Website?

    If so, How does that work?

  3. Parliament created a right to privacy with the human rights act but it nowhere says that privacy must be protected by injunctions as opposed to, say, damages, or that there must be prior restraint on free speech, of the kind rejected wholesale in that other great common-law jurisdiction, the USA.

    That was the creation of Judges.

    It is a judge-made law. And it is a bad one. And it is not too late for the Court of Appeal, i.e. Judges, to change it.

    Cameron cannot “issue instructions” to the judges, but he can, say, file “friend of the court” brief, with the next appeal that comes along, which if the “executive branch” inidicates that it supports the appeal (and will pay for it) may be very soon.

    Not instructions, you understand. Just a well-made argument that prior restraint and secret justice represents corruption of both the law, and of democracy.

    Of course the public have a right to know the details of court cases.

    For how can the public tell their representatives to change the law, unless the public is permitted to know how the law is being applied?

  4. Ben, I must say I’m not sure how one could keep information private after it has been published. As there is a “right to privacy” it seems to logically follow that there ought to be some kind of means of asserting that right.

  5. Something interesting about these cases we apparently should have a right to know about, and that the brave and principled heroes in the media should be free to tell us about, is that the media isn’t even advancing a public interest argument in some of them.

    See for example CTB v News Group Newspapers and Imogen Thomas
    http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html (para 26 and 37)
    and
    http://www.bailii.org/ew/cases/EWHC/QB/2011/1326.html (para 26) – “it has not been suggested that there is any legitimate public interest in publishing the story” (emphasis is the court’s).

    Even in Sir Frederick Goodwin (the banker formerly known as MNB) v News Group Newspapers there has only relatively recently been advanced a public interest argument (and not one particularly compelling to the judge):

    http://www.bailii.org/ew/cases/EWHC/QB/2011/1309.html (para 9.3 and 9.4)

    (the original order may be of interest to PPS
    http://www.bailii.org/ew/cases/EWHC/QB/2011/1309.(order).pdf)

    I agree that we should be concerned, broadly speaking and in principle, about ‘secret judgements’, but let’s not get excited about kiss-and-tell stories and attack the judiciary for preventing the media from selling us salacious gossip.

    The facts remain that, “The courts are required to carry out a balancing exercise between competing Convention rights, as was always overtly acknowledged by the government prior to the enactment of the Human Rights Act 1998”, and “the principles have long been open to scrutiny” (Eady J), such orders are open to challenge, and Parliament is free to change the law. In such terms there is nothing sinister or corrupt.

    Lord Neuberger’s Report of the Committee on Super-Injunctions is of interest.

  6. “Parliament created a right to privacy with the human rights act but it nowhere says that privacy must be protected by injunctions as opposed to, say, damages, or that there must be prior restraint on free speech, of the kind rejected wholesale in that other great common-law jurisdiction, the USA.

    That was the creation of Judges.”

    Which explains why those getting most out of their trees about it are….the lawyers!

  7. “As there is a “right to privacy”…”

    Like al lot of the spurious ‘rights’ we hear about these days, it’s an utter nonsense. If this is yet another straw that breaks the ECHR’s back once and for all, I’ll shed no tears…

  8. “Which explains why those getting most out of their trees about it are….the lawyers!”

    Amen!

  9. JuliaM, I don’t know what you mean by “utter nonsense”; either you think the law is gobbledigook, which seems strange, or you disagree with it. If you disagree with it, Parliament is entitled to change it.

    Do you disagree with a “right to privacy” in principle?

  10. ukliberty,

    Why does it seem strange to you that anyone would think that “the law is gobbledigook”?

  11. PPS,

    Because (1) JuliaM seems intelligent and (2) this particular law has been explained time and again in judgements and seems quite clear. As Eady J said in CTB v News Group Newspapers and Imogen Thomas, [2011] EWHC 1326 (QB), “it is not right to say that the law of privacy is unclear or “confused”. As I illustrated in the earlier judgment, there are a significant number of appellate authorities which have explained it in great detail.”

    Read from para 19 http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html for that illustration.

    I think JuliaM means it is “a nonsense”, i.e. it is something she disagrees with, not that it is nonsensical.

  12. UK Liberty, What is meant by a right to privacy? I would have thought it meant that those things that I choose to keep secret should remain so.

    This would prevent people from prying through my personal documents and publishing the contents, or sneaking into my back garden and photographing me doing naked yoga.

    It would never have occurred to me that a right to privacy means I can stop people who I shared an embarrassing or humiliating act with from making their own judgement to speak about it. What about if I decide supporting Cambridge United is sufficiently embarrassing. Could I get an injunction to prevent thousands of people from saying they saw me at the ground?

    I’m struggling to understand the reasoning behind these judgements, and that’s even without considering their workability in a globalised, connected world when they are not even enforceable in Scotland.

  13. ukliberty,

    You have not explained!

    You offered a choice with a caveat.
    1. either you think the law is gobbledigook, which seems strange.
    or
    Another choice with a predesignated outcome
    2. you disagree with it. If you disagree with it, Parliament is entitled to change it.

    Now you say that if 1 is called then JuliaM may not be intelligent.

    Eady J says “it is not right to say that the law of privacy is unclear or “confused”. That does not make it true.

    I understand that many people in this land are believers in the supremacy of the rule of law.
    Fair enough. Remember, though, that each person submits to the law by his own choice and his own conscience.

    If the lawmakers and law enforcers do not take account of that great virtue known as JUSTICE, then what helpful purpose does the law serve?

    The ability to speak your mind has been a hard fought for freedom. You seem to like quotes so here’s one for you:

    “The Saxon is not like us Normans. His manners are not so polite.
    But he never means anything serious till he talks about justice and right.
    When he stands like an ox in the furrow with his sullen set eyes on your own,
    And grumbles, ‘This isn’t fair dealing,’ my son, leave the Saxon alone. ”
    Kipling.

  14. @UKLiberty: That’s very “sophisticated” argument.

    The answer is damages, even punitive damages, assessed by a jury.

    The existance of the whole field of tort law presumes that while damages cannot unring a bell, they can compensate for consequential loss of hearing.

    For the question is not “how can we ensure privacy” – which could be answered by banning all speech – but “how can we balance privacy with legitimate public interest”.

    Damages are ideal for the purposes of balancing because they put the onus on the publisher – the person who knows best whether what he has to say is in the public interest – to be sure that it is.

  15. “Do you disagree with a “right to privacy” in principle?”

    Privacy from state agents, yes. From my fellow man/woman, no.

    Especially if I’ve slept with them without telling my spouse and children!

  16. Mr Potarto,

    What is meant by a right to privacy? I would have thought it meant that those things that I choose to keep secret should remain so. …

    It would never have occurred to me that a right to privacy means I can stop people who I shared an embarrassing or humiliating act with from making their own judgement to speak about it.

    But does that not necessarily follow from your first paragraph? What use is a right if it cannot be asserted?

  17. PPS, I’m not going to argue about what JuliaM meant with you; in fact I think I made a mistake in taking that phrase literally.

    Eady J says “it is not right to say that the law of privacy is unclear or “confused”. That does not make it true.

    True. Presumably that’s why Eady went on to explain why he thought that was the case and cited various authorities to back it up, as I said @17.

    If the lawmakers and law enforcers do not take account of that great virtue known as JUSTICE, then what helpful purpose does the law serve?

    What justice is being served by knowing, for example, who CTB is and when exactly he shagged Imogen Thomas and for how long? Thomas can’t sell her story? I seem to recall her saying she didn’t want to make any money out of this. We aren’t allowed to know? So what?

  18. Ben, ISTM you’re right of course that we ought to balance privacy with legitimate public interest, and that is what the judges seem to be doing.

    I seem to recall a good counterpoint in one of the judgements to your main point about damages after the event – I will try to find it.

  19. UK Liberty: “But does that not necessarily follow from your first paragraph? What use is a right if it cannot be asserted?”

    No, I would say not. A secret is something I keep to myself. If I share something with someone else it’s no longer only my secret. You didn’t address my further example, how many people who share my secret can I gag?

  20. Mr Potarto,

    If I share something with someone else it’s no longer only my secret.

    What if two people want something to remain secret? Perhaps they had an affair; perhaps they have a profoundly ill and disabled relative they want treated with a controversial treatment or euthanised / lfe support switched off.

    This is about competing interests: person A (and B, and C etc)’s right to privacy vs. person Z’s freedom of expression, the freedom of expression of others, and the public interest (if any).

    What weight are you giving to the lefthand side of the balance? If none, fair enough but I disagree.

    And it’s not as if person Z or the media are always prohibited allowed to say anything at all. For example, the media has been free to bang on at length about Imogen Thomas’s fling with a famous footballer.

    You didn’t address my further example, how many people who share my secret can I gag?

    it depends on what you mean by “can”. Legally, you can gag anyone and everyone (broadly speaking). Then the Streisand Effect comes into play, as CTB has discovered, presumably to his dissatisfaction. (the other disadvantage is that he has for the time being prevented himself from telling his side of the story.)

  21. “What if two people want something to remain secret?”

    Both people shouldn’t tell anyone! Ever!
    Nothing to do with the law whatsoever, unless there is an existing non disclosure agreement in place.

    “What justice is being served by knowing, for example, who CTB is and when exactly he shagged Imogen Thomas and for how long?”

    Fair enough! Conversely, what injustice is being created by the court telling them both to grow up and sort their own problems out.

    I am not putting forward these points because I am dying to know who jumps into whose bed. I am trying to impress the fact that sometimes you have to draw a line in the sand and push back the forces that would take from you that freedom which others have given much for.
    It’s not just her liberty it’s our liberty.

    I mean come on.
    Would you trust this girl with a secret?
    http://www.empflix.com/videos/Imogen-Thomas-Sex-Tape-Scandal-22598.html

  22. PPS,

    Both people shouldn’t tell anyone! Ever!

    What if a third party gets wind of it? After all, it’s not unknown for investigators (in the employ of media organisations) to access supposedly private messages; it’s not unknown for medical staff to abuse their access to sensitive, personal information.

    Conversely, what injustice is being created by the court telling them both to grow up and sort their own problems out.

    Well sure, that’s my gut reaction too, but thinking about it there is an infringement on the philanderer’s right to privacy, we don’t know if the philanderer has repaired his relationship with his wife and family; in the hypothetical medical case, knowing names and addresses is none of our business and could result in even more distress (while there might well be a public interest in a knowing about the controversial treatment in itself). We don’t know because of the secrecy, but us learning the secret entails the infringement.

    I am not putting forward these points because I am dying to know who jumps into whose bed.

    Oh, I didn’t think you have such an interest, nor anyone in this thread for that matter.

    I am trying to impress the fact that sometimes you have to draw a line in the sand and push back the forces that would take from you that freedom which others have given much for.
    It’s not just her liberty it’s our liberty.

    In what way is our liberty endangered in, say, that specific case (CTB v Thomas)?

  23. “In what way is our liberty endangered in, say, that specific case (CTB v Thomas)?”

    It’s the precedent it sets, isn’t it? It’s not possible to set up a ‘superinjunction’ system that allows footballers and popstars freedom from the media, but not politicians or businessmen.

  24. “What if a third party gets wind of it?”
    This a different question again. Now a third party is involved. If both people had really wanted to keep it secret then it would be.
    Third party involvement indicates one party may have been disingenuous in this regard. An NDA may have resolved this before any relations.

    I’m not entirely sure if the welsh fella has a respect for his own privacy or family life.
    These links indicate that it’s not just football that he likes to talk about:
    See: http://www.virginmedia.com/sport/football/galleries/ryan-giggs-career.php?ssid=9
    See: http://www.newsmediaimages.com/celebrity-article-24383-ryan-giggs-scotish-daily-sunday-herald-children-ryan-giggs/
    See: http://www.independent.co.uk/sport/football/premier-league/ryan-giggs-the-likes-of-wayne-rooney-and-cristiano-ronaldo-get-away-with-murder-now-507194.html
    See: http://www.amazon.co.uk/Giggs-Autobiography-Ryan/dp/0718148436

    They indicate to me that he seems happy to talk about his private life and show off his family in public when it suits him.

    “In what way is our liberty endangered in, say, that specific case (CTB v Thomas)?”

    Eady J states @ para 34 [2011] EWHC 1232 (QB) “more likely than not”.
    I always find it interesting that a judge sitting alone is qualified to consider the probability of anything without showing any calculations or referring to a statistical expert.
    I do not suppose for one moment that this judge has had any training in probability or statistics. but I would love to learn otherwise. “Beyond a reasonable doubt” seems to be going the way of the dodo.

    The whole process of being summoned before a court is, even with counsel and by my definition, “degrading treatment”, especially in circumstances where you are effectively being called a blackmailer. This as you know is contrary to Article 3. I’m pretty sure neither a Judge nor a Lawyer would agree as they are both familiar with these halls of mental torture. If you think going to the high court and being judged by another person, who has no personal knowledge of you, is not degrading then try it!

    As to the blackmail, Article 6(2) states “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”.
    So, should the judge have named her in this instance or respected her article 8 rights and anonymised her?
    (I appreciate that the word ‘blackmail’ was never used, but what would any reasonable indiviual construe from the comments at paras 10 & 12 [2011] EWHC 1232 (QB))

    Eady J states @ para 33 [2011] EWHC 1232 (QB) “It follows too that there can be no automatic priority accorded to freedom of speech.”
    I cannot agree. I do not know how anyone else feels, but I cannot agree. Any decisions of conscience thereafter to publish your thoughts or opinions could land you in serious trouble.
    Again this is considered by me as a breach of article 9 “Everyone has the right to freedom, conscience and religion”.

    Please bear in mind that this is a civil issue. The penalty could be jail, or is that prison.

    I had hoped to keep this thread away from specific arguments and on principle.
    I’d really appreciate it, if you’d get off the subject of a footballer and his bit on the side.

    I originally posted a link that i thought was quite humourous.
    I then posted a blog link in order to balance your link by Carl Gardener.
    Mr Gardener and few other legal bloggers seem to have taken exception to Mr Hemming’s activities. (Thus the Amen to “Which explains why those getting most out of their trees about it are….the lawyers!”)
    If the situation must be resolved in court then as Ben states Damages are the key. If she earns 100k and he gets 500k damages then I’d say that’s job done.

    And, finally, a quote from Mr. ICE-T, cause i know you loves them:
    “Freedom of Speech, that’s some motherfuckin’ bullshit. You say the wrong thing, they’ll lock your ass up quick……
    Freedom of Speech, let ’em take it from me. Next they’ll take it from you, then what you gonna do?”

  25. JuliaM,

    It’s not possible to set up a ‘superinjunction’ system that allows footballers and popstars freedom from the media, but not politicians or businessmen.

    Well, the latter is where ‘the public interest’ comes into play (or ought to).

  26. PPS, I hope you don’t mind me addressing your comment point by point.

    This a different question again. Now a third party is involved. If both people had really wanted to keep it secret then it would be.
    Third party involvement indicates one party may have been disingenuous in this regard. An NDA may have resolved this before any relations.

    Forgive me but are you unaware of the so-called phone-hacking story that has been in the news of late? It is simply untrue that if two people really want to keep a secret it will remain secret.

    “Beyond a reasonable doubt” seems to be going the way of the dodo.

    ‘Beyond reasonable doubt’ is the standard of proof in criminal cases; ‘more likely than not’ the standard of proof in civil cases, which is what we are talking about (until breach of the injunction).

    As to blackmail (Eady did use that word), I have criticised this suggestion / allegation (at para 9) in previous threads; ISTM the judge should not be suggesting this, given that he himself states the evidence is untested (para 9) again. I don’t know what purpose (or justice) it serves, except that it supports the argument for not serving papers to Thomas prior to the granting of the injunction. But I don’t think the suggestion is necessary for this and ISTM the suggestion is unfair to Thomas – even if CTB’s claims and the judge’s assumptions are accurate – precisely because she has not been formally accused or had the opportunity to give evidence.

    As to the issue of ‘anonymity’, I think Eady is correct to say Thomas “was already identified, apparently of her own volition, before any application was made to the court”.

    I then posted a blog link in order to balance your link by Carl Gardener.
    Mr Gardener and few other legal bloggers seem to have taken exception to Mr Hemming’s activities. (Thus the Amen to “Which explains why those getting most out of their trees about it are….the lawyers!”)

    Well, the lawyers will tend to know more about the legal issues than the rest of us. (Broadly speaking) A judge must interpret the law as he finds it, not as he or we should wish it. (that’s why it seems important to distinguish between claims made about the law and issues of principle.)

    I disagree with Hemming’s stance on the particular issue of naming CTB in Parliament. He says he is standing up for ordinary people who have been gossiping – that gossip does not merit criminal sanction. And of course gossip in itself should not be a criminal offence! But those people deliberately breached a court order (they must have known about it, the issue has been all over the news for weeks) – it was not necessary for them to reveal the name in order to discuss the issue. It is the breach that they could be punished for, not gossip. Certainly jail seems a bit much but no-one other than Hemming has suggested jail is likely, AFAIK.

    I’d really appreciate it, if you’d get off the subject of a footballer and his bit on the side.

    OK – it’s just that I find it helpful to talk about real-world examples, but fair enough, I find this an interesting discussion and don’t want to ruin it.

    As to Ice-T, I’m inclined to agree with the sentiment, but (1) he is discussing the US Bill of Rights and (2) did not go into the finer details such as falsely shouting “fire” in a crowded theater ; ) – point being that everyone accepts there is a limit on speech, people just disagree about where the limit is.

  27. ukliberty,

    I can see that you are not willing to let this go.
    I don’t want to get into minutae.
    I am, more likely than not, as well versed in these matters as you.

    But this is what it comes down to I Believe in Free Speech. I sense that you don’t believe as strongly as I do. That’s fair enough.

    In every circumstance in the name of security there always seems to be some reason to restrict freedoms. I believe this should be done rarely or not at all.

    As for shouting Fire in a crowded theatre.
    You don’t have to believe the shouter.
    The choice is yours!

  28. @ukliberty
    [quote]Forgive me but are you unaware of the so-called phone-hacking story that has been in the news of late? It is simply untrue that if two people really want to keep a secret it will remain secret[/quote]

    Surely the phone-hacking scenario is covered by Mr Potarto’s thought the law was to “prevent people from prying through my personal documents and publishing the contents, or sneaking into my back garden and photographing me doing naked yoga.”

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