Defame academy

Balancing the conflicting notions of freedom of expression and right to privacy is never going to be easy and neither was it intended to be. That is why the judiciary has been carefully appointed to hear each injunction request on its merit and decide the outcome regardless of media uproar.

This week Mr Justice Tugendhat delivered two judgments relating to anonymised rulings that have been granted to stop newspapers from naming individuals who have allegedly been involved in affairs. There is nothing unusual about this for such a prolific judge, but within those rulings Tugendhat J took the opportunity to hit back at the press’s misreporting of court proceedings in recent months.

Amongst barristers Tugendhat J is thought of as a modern judge with a strong respect for freedom of the press. After all, this was the judge who lifted the John Terry injunction in January last year. For him to speak out, said one leading media lawyer, albeit through a judgment, is “a big deal”.

The lawyer said: “He’s obviously having a pop at the press saying they’re deliberately not contesting these injunctions so they can create stories from them. It’s quite a giant leap on his part.”

The first of Tugendhat’s judgments concerned Fred Goodwin, the former head of Royal Bank of Scotland.

Last week Ben Stoneham, a spokesman for Lord Oakeshot, used parliamentary privilege to reveal that Goodwin had secured what he incorrectly called a “super-injunction” to cover up an alleged affair in the run up to the bank’s rescue by the Government. The injunction was so tight, it was claimed, that the FSA would not even know of its existence.

Parliamentary privilege was used to break the story and the judge later varied the terms of the injunction.

But more than that, it also gave Tugenhat J the opportunity to set the record straight about exactly how the court had come to the decision to grant the anonymised order.

Mrs Justice Sharpe granted Goodwin his anonymity in March after News Group Newspapers, owners of The Sun, threatened to run a story on the alleged affair. The defendant newspaper group was refused permission to appeal by Sharpe J, although the newspaper could have taken the matter to the Court of Appeal. Neither it nor any intervenors did so.

They did, however, report that a senior figure had been granted a so-called super-injunction.

When Stoneham used parliamentary privilege to break the Goodwin injunction all hell broke loose as the press pack rushed to court to get the injunction varied.

Goodwin’s lawyers did not oppose his name being revealed, but did object to the woman with whom he allegedly had an affair being named publicly. She was not notified of the hearing and therefore her anonymity remained in place.

Tugenhat J granted the variation immediately, but he took time over the written judgment, which arrived on Monday 23 May. In his judgment, Tugendhat J dismissed claims that an anonymity order would prevent the FSA from being made aware of the allegations.

“The injunctions of the 1st and 9th March were not intended to prevent disclosure of any information to the FSA or to any regulatory authority,” the judge said.

A second judgment delivered by Tugendhat J on Monday (1) TSE (2) ELP v News Group Newspapers, was also packed with a punch.

Again the matter was originally heard by Sharpe J in court on 13 May, but no judgment was delivered because the court was due to reconvene on 19 May. Again the case concerns a footballer alleged to have had an affair, although this time neither he nor the woman involved wished to be named.

The defendant did not contest the order and neither did it consent to it. No public interest case was made by the newspaper.

Despite telling Sharpe J that it would only refer to the man as a married premier league footballer, on 14 May The Sun ran another story headlined ‘New ace gags Sun on romps revelation’ and, according to the judgment, gave other information about him which limited the number of individuals who might be the claimant to very few.

By not contesting the anonymity order, the judge states, the newspaper made the headline on the story true. Internet service providers have also used this tactic, he said.

By adopting the stance the newspaper was using up valuable court time.

The judge states: “NGN does not explain why it adopts it. It is the court’s experience that in the past NGN has submitted to injunctions which it could not defend, or settled cases, as it did in JIH. If parties choose to exercise their right neither to oppose nor consent to injunctions, it has the further effect of taking up the time of the court that would be available to other litigants.”

The judiciary is under attack from the tabloid press and it is working hard to appease disgruntled editors. Transparency, however, should apply as much to Fleet Street as it does to the courts.