There has been a lot in the media of late over so called super-injunction. As is the case with all legal stories the newspapers continually distort the true picture to whip up a frenzy which results in Parliament looking at what is essentially a non-issue. I am going to attempt to add my voice to the many already out there on the internet.
An injunction, or if you are in Scotland an interdict, is a court order which prevents someone from doing something. For example, one could seek an injunction against one’s neighbour to prevent them from using their property in a way that prevents one from enjoying one’s own property or to prevent a newspaper from printing untrue stories about oneself. A super-injunction, and I’m not aware of there being any “super-interdicts” so this would appear to be an English only issue, is a special type of injunction that the wider public are not supposed to know exists – that is what makes it “super”.
The case of CTB v Imogen Thomas is not an example of a super-injunction, but rather the bog standard injunction described above. It does not have the extra layer of protection that meant its very existence was not supposed to be known by the wider public. Injunctions cover a wide array of things and could be used to prevent doctors from carrying out a medical procedure to being used as a pre-emptive way to prevent a breach of contract from occurring. They do not exist, as the media suggest, purely to stop celebrities from having details of their private lives splattered across the pages of a national newspaper (although that is one way they can be, and have been, used).
Injunctions and super-injunctions, particularly relating to celebrities, have sparked a debate on privacy, which has really only been of concern to those working within the English legal system. When considering the issue of privacy one must turn to look at section 12 of the Human Rights Act 1998. This places upon the court a clear burden to weight the public interest with the right to free expression. It has been said often before that what interests the public is not always the same as what is in the public’s interest. While the public very well may be interested in which celebrity is having an affair with who (and personally I cannot understand why that would be of any interest to anyone other than the parties involved) is it really in their interest to know? What benefit is there to the public knowing that Celebrity A is having an affair with Celebrity B? It is not for me to attempt to define what “public interest” means; that is either down to the Court or Parliament to do. However, some examples of what I would consider to be in the public interest would be:
A Government Minister acting corruptly in the exercise of his duties as a Minister – clearly there is benefit to the public of knowing such information and a Government Minister in such a position should not be able to prevent details of their corrupt actions being revealed to the wider public by way of a court order.
An MP acting in breach of the criminal law – I think that most would agree that a Member of Parliament breaking the Criminal Law is in the public interest and that the media should be free to report on this (in a way that does not prejudice any future criminal proceedings)
A company dumping toxic waste in an unsafe and illegal way – again, a clear example of something that would be in the public interest and that should not be able to be kept private by way of a court order preventing publication of details in the media.
To follow those three examples of things that, in my opinion, would be within the public interest some examples of what I believe the public might be interested in, but are not really in the public interest:
Celebrity A and Celebrity B (both single) have been seen in a restaurant having a romantic meal – the public might very well be interested in this, but the media should be able to be prevented from printing the details if Celebrity A, Celebrity B or both want to keep it private.
Celebrity A and Celebrity B (inclusive of politicians) are having an affair –again, the public might very well be interested in the lives of celebrities, but is it really in the public interest to have family disputes publicised in the paper? The effect of affairs can be bad enough, especially for any children involved, without having to see the details of it plastered in every newspaper, on every TV news bulletin and all over the radio for the next six weeks? I don’t think so.
Not every case is that straight forward, but I think it gives a flavour of the types of situations I am thinking of when looking at whether or not something is in the public interest or not. As I have already said above it’s not my place to try and put a definition on “public interest” – that must fall to Parliament and the Courts to define and interpret.
The Prime Minister has repeatedly said that he does not like the idea of judges making the law and doing Parliament’s job for them. I would agree that I do not like such a situation, but that is not what we have here (although I do feel it necessary that the Courts can provide an equitable remedy where none exists in law – where the Courts do this though it then falls to Parliament to deal with the gap that has arisen in the law by passing legislation). We have judges interpreting the Human Rights Act, a piece of primary legislation passed by the United Kingdom Parliament. It is the job of the Courts to interpret legislation passed by Parliament.
Privacy is an important aspect of human life. None of us wants our every move or the problems within our family plastered across the news. Some might argue that by being in the public eye celebrities should expect such things, or that celebrities are quite happy to use the media when it suits them. I do not subscribe to this view. Each us has a right to decide what we disclose and what we do not disclose to those around us. Not one of us is without a secret or two. There should be as little interference with that right as possible and freedom of expression is not an excuse for publishing private details about a person’s personal life that someone has sold to you or that you have discovered by investigating a person. Only where it is in the public interest should a person’s privacy be placed after freedom of expression. The media do not have a right to publish what they want about who they want regardless of the wider consequences. When they decide to print photographs of a person having an affair there are many innocent people who are affected – the innocent partner(s) who have been faithful, any children that may exist (and that may well include nieces and nephews).
Exactly what is in the public interest to reveal about a celebrity or not is a difficult question. By the nature of their position in public they are inevitably going to be role models for younger people in society. So, if I were to be caught speeding by the police in my car it would most probably not be in the public interest for the press to report that. However, if a premier league footballer is caught speeding then that very well may be in the public interest to report.
However, I can think of only a few situations where it might be in the public interest to report the affair of a high profile public figure. An example might be where such an affair could compromise the political process (e.g. a Government Minister having an affair with someone who has or is seeking a Government contract – especially where that Government Minister is or may be responsible for awarding said contract).
Generally, I am not in favour of restricting the press. However, free expression is not an absolute right (and cannot ever be) and is subject to exceptions. The privacy of a person, whether they are in the public eye or not, where there is no real public benefit to knowing should be respected and in my view there should be a presumption in favour of protecting that persons privacy if they so wish.
I do have concerns about so called “super-injunctions” as in my view no court order should prevent a person from discussing a matter with their elected representatives. Such injunctions are, thankfully, very rare. I will go on to explore what super-injunctions and privacy in more detail in blog posts over the coming days.
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NOTE: While the name of the footballer in question is in the public domain, the injunction remains in force. Any comments posted on this blog that name the footballer in the CTB v NEWS GROUP NEWSPAPERS case will either be deleted or redacted. This blog does not endorse the wilful breaching of court orders.
prout de jure 
Hmmm. A very complex issue all of this and I am certainly a bit rusty in the brain on these kind of issues. However I am not sure I can agree with your conclusions here.
A few of points;
1. Judges have definitely been on the activist side when it comes to especially super-injunctions. The ECHR and subsequent HR Bill don’t require these. Indeed is it not possible they breach people’s human rights as they are not available to all by virtue of their cost? As i believe was the case with Ms Thomas in the case with CBT. It is a law for only the rich!
2. Also surely an MP who seeks my vote on the basis of trustworthiness and then is found to be having an affair (ie breaching the trust his spouse placed in him) is surely in the public interest. And in a very real way he/she has invited the sort of ‘intrusion’ into their family life in a way that other celebrities have not. Simply being a good football player should not mean forfeiting the right to privacy in your non-footballing life. Seeking elected public office is an entirely different kettle of fish.
3. There is also a huge question here about press hypocrisy!! They are on their moral high horse about freedom of speech but they (esp the Murdoch red tabs) are the one’s who were committing criminal acts to acquire private information.
To address your points Glenn,
1. Injunctions exist, as I’m sure you’re aware, for much more than simply protecting the privacy of those in the public eye. They are granted in order to protect the identity of child witnesses or particularly young defendants in criminal trials. They can also be granted in order to prevent an anticipated breach of contract or to prevent a person from printing defamatory remarks about them. The judgment given by the English High Court in the case of the footballer everyone knows but still we cannot name gives an indication that evidence was put before the Court to suggest the allegations were false and were part of a set-up in order to blackmail the Claimant. Surely, if that’s the case (and having not seen the evidence can only go by the wording of the Judgment) is an appropriate use of an injunction (bearing in mind this cases wasn’t a super-injunction, but rather a bog standard injunction that aimed to provide anonymity)? There is a lot of confusion between the two, largely because of (as ever with legal matters) inaccurate reporting by the mainstream media. A super-injunction is one that the media (or anyone for that matter) can report exists rather than one that provides anonymity to one or more parties to the injunction.
2. I take your point on the MP and trust and that their level of privacy for family life is somewhat diminished compared to that of, say, a footballer. Although, I would still argue that politicians have the right to a private and family life. Exactly where the line is may be open for discussion.
3. A very valid point and one which I’ve written about often (the general hypocrisy of the media that is). The Media is obsessed with bringing information to the public that the public is interested in. The companies that publish our newspapers are businesses and as such they want to make a profit and to do that they need to sell news that people want to read about (that said, I am of the view that people want to know what the likes of Murdoch tell them they want to know). There is, as I and others have said, a significant difference between the public interest and what the public is interested in. The latter should not come before the privacy of those involved while the former most definitely should. It is not for me to attempt to define what “public interest” means, that’s for Parliament to define and the Courts to interpret.