Prime Minister Gordon Brown last week called a House of Commons debate about the rise in the number of super-injunctions being issued against newspapers.
Lawyers, however, are puzzled by the fuss, saying it is not a new fight but a natural consequence of the Human Rights Act (HRA) and the contradiction between Article 8, the right to privacy, and Article 10, the right to freedom of expression.
“There’s a myth about super-injunctions,” said Steeles Law partner Dominic Crossley. “Media organisations create the impression that they’re bombarded with injunctions. My personal view is that there aren’t anything like the numbers they say. It’s an exception rather than a rule.”
Withers partner Jennifer McDermott agrees. “They’re very unusual orders,” she said. As she explains, if the injunction turns out to be issued wrongly the applicant would be liable for losses caused to the defendant.
“You have to approach this on the basis that injunctions are not the easiest thing to get,” added Russell Jones & Walker head of media and libel Sarah Webb. “It’s very expensive and the courts are aware that it’s a draconian step. They’re never going to be handed out like aspirin.”
But newspaper lawyers thought it was a step too far when a super-injunction extended to the House of Commons, preventing The Guardian from publishing details of parliamentary questions asked about oil company Trafigura. Trafigura’s libel lawyers Carter-Ruck attempted to stop the reporting of a question by Labour MP Paul Farrelly.
The Guardian director of editorial legal services Gill Phillips said: “I do think there’s a real issue of concern about the use of the so-called super-injunction, particularly where they relate to an anonymous corporate claimant and seek to prevent any mention of the existence of a claim. It needs to be remembered that we have a principle of open justice in this country.”
The Guardian injunction was initially issued on 11 September, when the paper wanted to publish a report relating to a claim that Trafigura was fighting over the toxic dumping of waste in the Ivory Coast (The Lawyer, 23 September).
That case was settled without Trafigura conceding liability. At the same time the oil company also settled a libel case against the claimants’ lawyer, Martyn Day of Leigh Day & Co.
Carter-Ruck argued that the gagging order also prevented the paper from publishing details of questions asked in Westminster. This sparked outrage among MPs about the threat to parliamentary privilege and the order was withdrawn the next day.
The Prime Minister then decided that a further debate about super-injunctions was needed.
Media lawyers responded to the announcement with a degree of scepticism.
“Parliament needs to take pressure away from other things that are going on,” one said. “Suddenly everyone’s talking about it whatever happened to the debate on MPs’ expenses?”
During the parliamentary debate on 21 October Justice Minister Bridget Prentice said she was alarmed over the wider use of super-injunctions and would consider whether to issue new guidelines to the judiciary.
The media, meanwhile, launched attacks on Carter-Ruck for its part in orchestrating the injunction.
Media lawyers have come to the firm’s defence, accepting that it may be a PR disaster but pointing out that Carter-Ruck was only following the rule of law.
“The criticism of Carter-Ruck is unfair,” said Crossley. “They were only following an instruction about which no one will ever know. Nobody will know what’s gone on behind the scenes. The order’s obtained from the courts.”
“Carter-Ruck didn’t invent this,” another media partner said. “They had to look at [the injunction] on the basis of the facts and how it relates to the Human Rights Act.”
There are instances, the lawyer argued, where parliamentary privilege can be curtailed. “For example, there could be an MP who has health issues – there’s no public interest argument there. On the facts of the case you could apply for an injunction to stop a paper publishing.”
The Guardian said it had received at least 12 orders preventing it from publishing in the past year. This compared with six in 2006 and five in 2005.
McDermott conceded that it “seems like an awful lot” and said she was “particularly surprised” that it was The Guardian and not the tabloids that had gone public on injunctions against it.
“I’ve defended newspapers facing claims for breach of confidence and invasion of privacy,” McDermott said. “I also act for claimants asserting such rights. Only rarely have I sought injunctive relief, and only when there’s no question of any public interest defence applying.”
Another lawyer commented: “The difficulty is that the media hates anything that fetters with their discretion.”
The legal maze between the right to privacy and the right to freedom of expression is expected to become more jumbled next month when Chelsea FC footballer Ashley Cole launches a High Court privacy action against the Mirror Group.
Graham Shear, who recently left Teacher Stern to join Berwin Leighton Paisner (The Lawyer, 6 August), has instructed 5 Raymond Buildings’ David Sherborne for Cole. Cole is seeking damages over allegations he had been having affairs and caused upset to his wife, Cheryl Cole.
Lawyers will argue that Cole and his family have a right to privacy and that some of the allegations were factually incorrect.
The Mirror Group will be represented by Farrer & Co partner Julian Pike and Alexandra Marzec, also of 5 Raymond Buildings.
When the HRA was devised, Articles 8 and 10 were intended to conflict, with the courts deciding on definition.
The media is right to defend its corner, but it should not attempt to curtail the right of its subjects to complain. Articles 8 and 10 serve the purposes of all, despite what the critics say.