A significant victory against the superinjunction but the fight for free speech goes on says John Kampfner
This article was originally published in the Mail on Sunday
John Terry may earn himself a place in history as the man who brought to an end one of the most sinister tactics used to stifle free speech in this country.
He didn’t, of course, mean to do it. He employed the showbusiness law firm Schillings, which specialises in ensuring that individuals and media are discouraged from publishing information that might inconvenience its clients.
His lawyers obtained a superinjunction ensuring that nothing, repeat nothing, could be mentioned about his affair – even the existence of the injunction itself.
The superinjunction is a mighty tool that would do many a dictatorship proud. It has become a catch-all device simply to stop the media reporting facts that might embarrass companies or individuals.
The most outrageous example came last October when Carter-Ruck, another law firm that feeds off curtailing free expression, sought to prevent a newspaper from reporting a question in Parliament about a superinjunction granted to the oil trading firm Trafigura, which was alleged to have dumped toxic waste in the Ivory Coast.
The Trafigura case amounted to a direct attack on centuries of constitutional history and the supremacy of Parliament. Such was the popular outcry from ordinary people outraged at the censorship that Carter-Ruck was forced to drop the injunction.
In the Terry case, common sense has also, belatedly, prevailed. Mr Justice Tugendhat’s decision may presage a change of direction by judges who in recent years have bent over backwards to accommodate the wishes of those seeking to gag the media.
Tugendhat seems to be beginning to understand the extent of public misgiving about the state of affairs.
The balance between the right to know and the right to privacy – both enshrined in the Human Rights Act – had previously shifted hugely to the rich and powerful.
The seemingly inexorable march towards greater censorship in the UK reached its peak in 2009.
A combination of zealous law firms, sometimes cash-strapped news organisations and a public that is encouraged to think the worst of the media has created a situation where the right to know seems optional – unlike in America, where the First Amendment guarantees freedom of speech as an inalienable right.
The emerging privacy laws and the superinjunction were two of the more modern weapons of choice. The other one is more traditional – the law of libel.
My organisation, Index on Censorship, has been at the forefront of a campaign to change the laws of defamation.
British law (or rather English, as the Scottish system is a little better) has given us a pariah status. The US Congress is pushing through legislation protecting Americans from our courts, which have been allowing oligarchs, sheiks and others to sue people, often other foreigners, using England’s indulgent legal system.
This is known as ‘libel tourism’. For the lawyers it has been highly lucrative. The idea that our greatest ally needs to insulate itself from British judges and lawyers is excruciatingly embarrassing.
Politicians have finally begun to notice. Jack Straw, the Justice Secretary, has assured us that he intends to make significant changes even before the General Election.
This is not about the rights of journalists: We have countless examples of scientists, charities and individuals being sued, or threatened with being sued, for stating opinions or for bringing serious cases of abuse to light.
Invariably ordinary people have neither the stomach nor the cash to defend themselves against the predatory legal firm. Instead they choose to settle.
At least when people are sued, the public knows. The real outrage of superinjunctions is that nobody knows about them. Neither Government nor the courts apparently keep records and editors are not allowed to talk about them.
Estimates put the number currently in existence somewhere between 200 and 300.
It is a measure of the impact of the Trafigura fiasco on the public that much of the internet comment on John Terry revolves not around his peccadilloes but more about the misuse of the law.
This new ruling may suggest that courts may be more reluctant to issue such injunctions in future. But the broader assault on free speech is by no means over.