April 1st, 2011
In the week that super-injunctions broke new legal ground, John Kampfner attacks a growing threat to press freedom
This article was first published in The Independent
Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain’s libel laws, than the judiciary set a dangerous new precedent.
The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.
I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.
The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.
Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers “playing away” with team-mates’ girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors’ firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.
The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn’t know that the cases even exist.
When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.
Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.
A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.
Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.
There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.
There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.
Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.
For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.
John Kampfner is chief executive of Index on Censorship twitter@johnkampfner
The cases
1. A leading sportsman won a gagging order after learning that ‘The Sun’ was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman’s private life could be “unlawfully exposed”.
2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.
3. A married public figure won a gagging order to hush up his infidelity after claiming it would be “very distressing” for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of “hush money”.
4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man’s wife. The manager argued for privacy because he was trying to rebuild his life.
5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.
6. A high-earning footballer won an injunction preventing the reporting of claims of a “sexual liaison, encounter or relationship” with an international female sports star. The injunction banned publication of “private or personal photographs” on mobile phones.
7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.
8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions
