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Victory for Mosley would have meant that media outlets would have been required to contact subjects of stories prior to publication. But there were fears that such a step would lead to a rise in interim injunctions barring publication.

In a ruling published this morning, the Strasbourg court judges noted that:

having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 [the right to privacy] does not require a legally binding pre-notification requirement.

Case of Mosley v. the United Kingdom

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The Kamm saga started in November 2008, when Israeli newspaper Ha’aretz published a feature claiming the IDF was defying an Israeli Supreme Court ruling — the order should have prevented the security services killing Palestinian terrorists who could have been captured alive. Ha’aretz suggested the military had unilaterally loosened its rules of engagement, marked terrorists for assassination and also published top secret IDF documents.

The story didn’t have much impact but the publication of a copy of an actual IDF secret document lead to investigation by Shin Bet (Israel internal security agency) to discover who has leaked the documents published by journalist Uri Blau in his article.

A year later, Anat Kamm, a former soldier who served as assistant to the bureau chief of OC Central Command, and a writer for popular Israeli website Walla! was arrested on suspicion of espionage as well as holding and leaking top secret documents. She was put under house arrest and a gag order was issued by court. Kamm has now been charged with two counts of “grave espionage”.

Shin Bet claim Kamm stole over 2,000 documents, some of them highly sensitive and passed many of them to Blau, who has been in self-imposed exile in London since the end of last year. Blau has returned about 50 IDF documents to Shin Bet, but negotiations have stalled on the return the remaining documents — the documents could incriminate both Kamm and Blau. As the two sides couldn’t reach an agreement, the state let the gag order to be lifted.

While hardly anybody took notice of the original issue of the IDF’s disregard for the court ruling, the gagging order attracted criticism in Israel and around the world. It took more than three months to break the news, but when bloggers and British papers published it, the Israeli media started dropping hints about the case. And when Israel’s most popular paper, Yedioth Ahronoth, published a heavily censored column by American journalist Judith Miller mocking the injunction it was obvious that the gag is not affective any more.

Still; it took three months to publish the fact that Kamm was under arrest. Ha’aretz and Blau have been told to disclose any IDF documents they have and the general feeling in Israel is that Shin Bet knows everything and it is better not to go near the case (the advice I got from a lawyer few weeks ago). In the words of Tali Lieblich, Ha’aretz’s lawyer: “Every Israeli journalist should know that he may be the victim of such persecution himself.”

Colonel Sima Vaknin Gil, head of military censorship, agreed that there was no point to keep the gag order for much longer but added that “sometimes a gag is important if publishing the story may lead to a publish discussion that we can’t control”.

The public reaction in Israel was predictable. Websites were flooded with calls to shut down Ha’aretz, put Kamm in jail for the rest of her life and “do a Vanunu” to Blau. Radio phone-ins urged the state to put a stop to over-rated freedom of speech and an over-powerful press.

Yuval Diskin, head of Shin Bet, concluded in a special media briefing: “We were too gentle… We should have taken of our gloves much earlier in this case. We were too sensitive to the world of journalism. We dragged the investigation for far too long. It should have finished ages ago. That’s our lesson.”

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Jonathan Heawood, Director of English PEN, said: “The rights of Parliament are the rights of citizens. Unless Parliament is free to debate everything that MPs believe to be important, it can’t do its job properly. And unless the public is free to know what Parliament is talking about, we have closed government. Super injunctions compromise democracy and should be banned, except in extreme circumstances.”

MPs from the three main parties voiced their concerns about super injunctions and the impact of English libel law on free speech in an adjournment debate called by Evan Harris MP in the wake of the Trafigura affair, in which the law firm Carter-Ruck argued that a “super-injunction” prevented the media from reporting on a Parliamentary question asked by Paul Farrelly MP.

They wrote to the Speaker of the House on 14 October suggesting that the issue might also be out of bounds for Parliament. Carter-Ruck withdrew the injunction in the wake of a global internet campaign.

During the debate, Denis MacShane MP called for the partners of Carter-Ruck to be called to the Bar of the House of Commons to account for their attempts to ‘subvert Parliamentary democracy.’

MPs commended the work of Evan Harris, English PEN and Index on Censorship in raising awareness of the failings of English libel law.

Paul Farrelly MP asked for a return from the “rule of lawyers to the rule of law”. Peter Bottomley MP asked for all injunctions to be logged openly in order to allow proper parliamentary oversight of the courts. John Whittingdale MP, Chair of the Culture, Media and Sport Select Committee, said how MPs on the Committee had received threatening letters from solicitors. These had been described by the Speaker’s Counsel as “improperly interfering with the work of Parliament”.

David Heath MP asked the government to confirm that the Parliamentary Papers Act 1840, which grants the media the right to report on everything in Parliament, is still in force.

Responding to the debate, Bridget Prentice, Minister for Justice, said: “It is not possible to fetter Parliament”. She confirmed that the advice given by Carter-Ruck in their letter of 14 October to the Speaker was incorrect. She said: “we are very concerned that super injunctions are being used more frequently, especially in libel.” And she confirmed that the Parliamentary Papers Act 1840 was still in force.

Prentice promised further guidelines on the use of super injunctions and agreed that defamation law “needs to be tightened up”.

She stated that the government would abolish the antiquated laws of criminal libel, obscene libel and seditious libel in an amendment to the Coroners & Justice Bill in response to pressure by Index on Censorship, Article 19 and English PEN.

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The story could be seen as an aberration, an example of hubristic lawyers tying themselves in knots. At an emergency meeting on Thursday, a cross-party group of MPs, journalists and campaigners debated whether Carter-Ruck had simply made a mistake — parliament’s rights are supreme and nobody would have the temerity to challenge that in a court. If only it were that simple.

Possibly because their interests are at stake, MPs have woken from their slumber. That meeting is due to be followed by one today with Carter-Ruck, and by a debate on Wednesday. The Conservative MP, Peter Bottomley, has promised to report Carter-Ruck to the Law Society. The new speaker, John Bercow, declared that “there is no question of our own proceedings being in any way inhibited”.

However, a closer look suggests a more complicated picture. Paul Farrelly, the Labour MP and former Observer journalist, ensured that his question was tabled only by carefully not drawing the attention of the Commons authorities to the actual case in question. The irony is that Carter-Ruck’s insistence on secrecy through the super-injunction worked to his advantage. The Commons authorities apparently had no idea what case Farrelly was referring to when they let his question through.

Jack Straw, the justice secretary, is now being lobbied to clarify the situation and to restate the right of the media to report whatever is said or written in the Commons or Lords, no matter what the circumstances.

Even though the super-injunction was lifted late on Friday, the episode should galvanise MPs to see the bigger picture – the seemingly inexorable march towards greater censorship and self-censorship in the UK. A combination of zealous law firms, pliant and sometimes ignorant judges, cash-strapped news organisations and a public that is encouraged to think the worst of the media has produced a situation where strong, investigative journalism is in jeopardy.

The list of infringements is long. The most egregious example is so-called “libel tourism”. Britain is seen as a pariah by the US Congress, which has followed several states in indemnifying Americans from the excesses of English courts.

The chilling effect is hard to quantify, because beyond the prosecutions and the injunctions lie stories that are never written for fear of an angry legal fax.

Many well-intentioned legal changes introduced in recent years have been manipulated, resulting in the opposite effect of the one envisaged. Conditional Fee Agreements —”no win, no fee” — were designed to help the impecunious to mount a claim when wronged. Instead they allow lawyers representing the wealthy to string cases along for as much as possible, knowing the other side cannot afford the fight. One editor told me recently he had been advised by his bosses to “lay off the oligarchs” for purely financial reasons.

The so-called Reynolds Defence, in which a journalist can claim to have acted professionally even where errors are made in publication, is used to stop publication. As soon as the other side is contacted for a comment, the threats begin, and publication can be inhibited.

The biggest challenge is the rise of super-injunctions and the misinterpretation by judges of the right to privacy as enshrined in the Human Rights Act. This part of the legislation was supposed to allow people to protect themselves and their families from unwarranted intrusion. Now “reputation” is being opened to corporations, who, through their lawyers, have been able to persuade judges to agree pre-emptive injunctions to protect their brands. The use of gagging orders appears widespread.

The current libel case that is attracting most attention is that of the science writer Simon Singh. In one of the few positive developments of recent days, he was given leave to appeal against the action brought by the British Chiropractic Association.

Set against this atmosphere of fear is a mood of defiance on the blogosphere and social networking sites. Carter-Ruck’s actions were undone in large part by the extraordinary response on Twitter to the Guardian’s predicament. Many stories that cannot be commented on in a UK domain can be read on foreign-hosted websites. This has produced the crazy situation of people in other countries being better informed about our country than we are.

Index on Censorship and English PEN have jointly conducted an inquiry into libel and curbs on free expression. A number of round-table discussions with editors, broadcasters and senior lawyers produced a heartening show of unity and a determination to lobby for change. Our recommendations will be published on 10 November.

A few weeks later, the culture, media and sports select committee will publish the long-awaited results of its own inquiry into libel, privacy and press standards. There are signs that recent developments may have put some steel into its spine.

The battle is not about allowing journalists to pry with long-lens cameras; it is not about abolishing libel or the right to redress when maliciously wronged. It is about redressing the balance, about removing the stigma from a judicial process that has rendered English law the laughing stock of the western world and the enemy of free expression.

John Kampfner is chief executive of Index on Censorship and author of Freedom For Sale

This article was originally published at Media Guardian

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