Part 2 of my blog series on Injunctions, Super-Injunctions and Privacy will focus on the issue of Super-injunctions. I think it would be prudent to once again state what an Injunction is and what a “super-injunction” is as there is a lot of confusion, especially in the wider mainstream media as to what each is.
An Injunction is an order issued by the Court that prevents a person from doing a particular act. So that could be naming the victim in criminal proceedings involving children under 16 or the victim in a rape case. Moving away from criminal law it could be an injunction to prevent an anticipatory breach of contract or to prevent the printing in the media of untruths about a person.
A super-injunction is an injunction that has an additional layer of protection attached to it whereby the media cannot even report that the injunction exists. It is not one where anonymity has merely been granted, that is an anonymity injunction. The media are free to report about injunctions that have been granted where one party remains anonymous (provided that they do not break the terms of the injunction such as revealing who the anonymous individual is), they are not free to report that a super-injunction exists. The wider public should not know that one of these injunctions exists.
In the case of the footballer whose name is widely known but in terms of the injunction is only known as CTB this was not a super-injunction. Had it been a super-injunction the media would not have been able to report that an injunction had been granted. The injunction merely prevented the media from revealing the name of the footballer in question.
Having read the judgment of the Court and the reasons why such an injunction was granted I must say that I find no real reason was to why the Injunction should not have been granted. The narrative of the case suggests that the allegations that appeared in the paper were false and indeed that blackmail (a criminal offence) may have occurred. The media cannot be allowed to print libellous and defamatory stories about a person. The case of CTB is not a case where the footballer in question has done something wrong and is now trying to prevent it from coming out in order to protect his reputation, but rather is preventing what appear to be libellous statements about him being printed.
I am in no doubt in my mind that the ability of a person whether they be in the public eye or not to prevent what they deem to be libellous and defamatory information about them from being printed is a good thing. How would you feel if the papers suddenly printed a story about you that suggests you acted unfaithfully towards your spouse, that in your mind is untrue and the evidence that exists was staged and part of a blackmail plot? One would imagine you would want to do everything in your power from stopping such a story being printed. Granted, the chances of that happening to someone outside of the public eye are remote, but it could be demonstrated equally as well with any number of more realistic situations for the average member of society.
The problem I have with super-injunctions is the secrecy of them. They cannot be open to scrutiny as they are entirely secret. They go beyond granting anonymity to the Claimant and mean that nobody outside of the parties, Counsel, Solicitors and Judge should know of its existence. I am sure there are perfectly good reasons for such injunctions to exist in terms of National Security and such like, but when it comes down to protecting the private life of individuals in the public eye I believe that is a step too far. They prevent, for example, a party to the injunction raising the issue with their elected representatives should they wish representation by their MP or local councillors.
As I have said in part 1 and will explore in more detail in part 3, privacy is essential in our lives. Each one of us, whether we are in the public eye or not, are entitled to some level of privacy. The right to a private and family life is important, but you will just have to wait for my thoughts on that.
[Part 1]
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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 
‘The right to a private and family life is important’ – yes it is; but it’s also important that we know that these people are lying to us about their inappropriate behaviour and loose morals…especially when they are making a fortune out of sponsorship deals.
I would have to disagree with you, I would explain why in more detail but that’s what part three of this series of blog posts will be on and should be up tomorrow. There is a big difference between the “public interest” and what the public are interested in.
If someone is, in effect, obtaining money under false pretences, I want to know about it so that I can spend my money elsewhere.
That’s precisely what I mean by there being a difference between what the public is interested in and what is in the public interest. What you have described is a personal interest, not something that is in the public interest.
It’s more than a personal interest; it’s a consumer right. Personally I wouldn’t want to purchase a replica shirt featuring the name of an adulterer; in order to make that choice I need to know who the adulterer’s are!
That still falls into the category of “what the public is interested in” rather than “what is in the public interest”. Furthermore, if you actually sit and read the judgment of the High Court the narrative by the Judge suggests that convincing evidence was put before him that the alleged affair did not actually happen, but rather what evidence exists was set-up as part of a plot to blackmail the Claimant. You are being persuaded by what a red top newspaper run by a man whose organisations have been shown to be corrupt has printed. If you think that CTB would be given the time of day by the newspaper in question to explain his version then you are very much mistaken. It would get a few lines, at most, in a double page spread as his version would sell fewer papers than what the original story has. Newspapers exist not to provide news, but to make a profit and this is what their whole objection to injunctions is based on. If they cannot report the private affairs of celebrities then their sales figures will drop affacting proffits. Don’t be fooled into think the objection of the newspapers is on any moral stance; it’s about pure profit.
Some Newspaper editors and journalists are so keen to get hold of private information that they will break the law just to get it in order to make money (phone hacking being a good example).
This injunction is, from my reading of the judgment, more about preventing potentially libellous and defamatory comments being printed than protecting the privacy of an individual who has been involved in extra-marital affairs (something which I personally disagree with, but is not unlawful and therefore is a private matter between the individuals involved – subject to the “public interest test”).
Ah….the truth comes out Alistair. Another member of the illiberal liberal elite telling me what I should read and believe in.
I’ve seen a list of what details are known about all of the injunctions and several of them are covering up illegal behaviour by rich and powerful people…and yes, I’ve re-posted the link – I’m quite happy to become a free speech martyr.
What [redacted] did indeed isn’t illegal, but I bet some of his lucrative sponsorship deals wouldn’t have been signed if the truth (or just rumours) had been known.
Firstly, free speech is not an absolute right, it is a qualified right to be balanced against other competeing rights (e.g. right to privacy or another person’s right to free speech). Now some of the questions that spring to my mind are:
1) Have you read the actual judgments or are you simply going by what someone else has told you?
2) Are we talking about super-injunctions or a bog standard injunction as that will have an impact upon what information you can and cannot post legally. A super-injunction is NOT one that provides anonymity. A super-injunction is one that has reporting retsrictions in place that mean the media cannot even resport its existance (you are free to report the existance of an injunction providing anonymity).
3) Breaching a court order does not make you a free speech martyr. Too many people are getting sweept up in a storm that is being created by John Hemming MP and the mainstream media, both of which have their own motives behind this latest campaign (neither of which have anything to do with decency or morality)
You are, of course, free to read the Murdoch press if you wish. What I cannot stand is the way in which the Murdoch press (and mainstream media in general) twist things and report them inaccuratley. For example, the CTB injunction is still getting reported as a super-injunction, which clearly it is not (nor was it ever). It’s ignorance that breeds ignorance and people have such a poor understanding of law because of the way it is constantly twisted to suit the editorial position of a newspaper of broadcaster (and you cannot deny that this is the case – the number of court judgments that have been misrepresented in the press has even resulted in condemntation from the judiciary).
Rumours that attack the character of an individual and not based on fact is defamation. In England it is a Tort and in Scotland a Delict. How would you feel if inaccurate and untrue material was presented in a public forum (as fact) about you that then affects your wider life? I suspect you would not like it. What if I were (and I make clear that I am not) to publish in the newspaper as fact that you have had an extra-marital afffair or something along those lines? Would you not want to try and prevent me from publishing it if you discovered this prior to me publishing it? Would you not try and sue me if you only found out after the fact?
Furthermore, please do not use the real name of CTB on this blog. I will continue to redact your comments if you ignore this simple request. A court order is still in force banning his name from being reported and this blog will not condone the breaking of a court order.
Sorry about using CTB’s real name, you probably aren’t quite as keen as I am to be detained at her majesty’s pleasure.
I’m no supporter of the mainstream press and media – the BBC in particular. You’re correct in stating that there are a lot of inaccuracies in the reporting; maybe this is because of all the secrecy and subterfuge involved. If things were out in the open they’d be able to be reported, and if there were any inaccuracies or falsifications then people would/should have legal means to seek restitution. However, if what is reported is the truth, irrespective of consequences, it should be allowed to be published without prior restraint.
By the way freedom of speech is an absolute concept, you may wish to limit it and maybe government’s aught to…but they should be honest about it and [if we had a constitution] state that the UK is a limited democracy, with certain restrictions placed on its citizens.
The misreporting has often got nothing to do with secrecy. Take the case of Learco Chindamo who was convicted of the murder of the teenager Stephen Lawrence. When the UK failed in its bid to extradite him it was widely reported by the media that the Human Rights Act was to blame for this failure, when actually this was only a secondary issue and the primary failing was down to the European Union freedom of movement laws. Another common misconception peddled in the media is the fact that the European Convention has anything at all to do with the European Union. It doesn’t. The Council of Europe is a separate and distinct organisation from the European Union and the two are in no way related, that doesn’t stop the media peddling fiction as fact though. In L (A Child: Media Reporting) the judge, His Honour Judge Bellamy criticised the “unbalanced, inaccurate and just plain wrong” reporting by a journalist of a court judgment. The head of the court of appeal in England and Wales, Lord Neuberger, has also commented on the misreporting of court judgments in the media.
Look at the way the media portrayed Christopher Jefferies over the Jo Yates murder. They had him convicted and in prison for life and guess what, it wasn’t him. The mainstream media (all of it) is far too busy making headlines to report the law accurately. It has been seen again over the whole injunction business, the media calling all injunctions “super-injunctions” and painting injunctions as only being available in cases involving privacy issues (which they most certainly are not). It’s high time the media used the lawyers that they employ to get it right rather than peddling stuff that’s been twisted to suit an editorial view leaving the public confused as to what the law actually is.
Responsibilities come attached to all rights. Nobody has the right to make false and damaging accusations against another person as if they are fact. Opinion is another thing completely, but if you’re stating something as fact that is not and that can or does damage the reputation of another individual then it is only just and equitable that a remedy is in place to either prevent that from happening or to remedy the situation once it has already happened. I’m not saying that the CTB case definitely involves defamatory information as I have not seen the evidence that the Judge saw when granting the injunction.
People who are quick off the mark to break a court order could, for all they know, be placing a person in danger. Not all the evidence appears in the written judgment so you really do not know what was said in court. Yes, that is secrecy but you cannot reasonably argue that all court proceedings should be entirely in open court – especially where those proceedings could place people in danger if certain information is revealed. Anonymity injunctions also exist to protect victims and innocent people caught up in court proceedings (such as children in family matters or in some criminal proceedings).