When the Guardian’s director of editorial legal services, Gillian Phillips, spoke at an industry conference 12 months ago, there were no written judgments on privacy injunctions apart from Terry. Since then the field has developed significantly, giving Phillips plenty to draw on, for a talk about the rise of the “super injunction”, at this year’s IBC Legal Defamation & Privacy event.
They may have first entered British public consciousness when Guardian editor Alan Rusbridger drew attention to “so-called super injunctions” in 2009, but the first order Phillips found in their files that “looked super injunctiony-ish” originated in March 2007. Schillings had served a privacy injunction for Britney Spears, against two newspaper groups.
Britney Spears was probably the start of a gradual change in the way these injunctions were obtained, Phillips said. The next significant one was granted in November 2007 for Northern Rock against the Financial Times. But there was still no “super” element, ie. a ban preventing reports of its existence.
May 2008 saw an anonymous set of initials, but as far as Phillips could tell it wasn’t a super injunction because it didn’t prevent mention of the order. However, it was against persons unknown, which became “a bit of a trait” because it meant no one was there to argue the other side.
Phillips’ first anonymous super injunction came about in February 2009, which included prevention of reporting the proceedings. For legal reasons, she couldn’t say much more.
Then came Trafigura, Terry and many more. In her overview, Phillips described the basic principle of open justice.
“Every time the court anonymises or holds something in private, makes an order saying you can’t report it, all those things are derogations from that fundamental principle.
“There is no doubt that those derogations can only be made where they’re strictly necessary. For a long time, the courts seem to have forgotten that and the claimants and those representing them seemed to have forgotten that and these things were effectively going through on a rubber stamping exercise.”
Where next? Phillips flagged up Mr Justice Eady’s comments in a speech in November 2009 in which he foresaw the possible development of a general tort of reputation, where the public interest becomes the overall guiding principle and the fact that something is true does not necessarily amount to a defence [PDF link]. “Alarm bells [are] ringing for all of us,” she added.
Looking to Europe, Max Mosley still awaits the judgment on his application for prior notification. A second Von Hannover case is currently going through the European Court of Human Rights, which raises a number of issues about privacy and the relationship with defamation.
The super injunction committee, formed by the Master of the Rolls, and made up of claimant solicitors and in-house media defendants, as well as members of the judiciary and counsel, is in the process of preparing a Report, Guidance and a draft pro-forma order. The body is still meeting, but is hopeful of producing a final report before Easter.
In the meantime there are three “‘super injunction type” cases due before the court of appeal in the next few months, WER, KGM and WXY, which might provide “a bit more light coming out of the tunnel”.
Yesterday’s Defamation & Privacy industry conference neatly coincided with the publication of the government’s draft defamation bill, in time for the final panel to dissect and critique it after lunch.
Tracey Brown, director, Sense About Science, and part of the Libel Reform campaign, welcomed the bill’s content while expressing caution over certain elements, for example Section Two proposals for the “Responsible publication on matter of public interest”.
“My first reaction is that we need to look again under [section] Two, items A-H, which I think still represent hurdles which the court may use as a checklist before making a defence available. I am quite concerned about that — [it] may really limit the availability of the defence for citizen journalists.”
“I’m really disappointed that corporate claimants haven’t been addressed,” she added. “The bill is yet to address ISPs and the internet in a forceful way.”
Sarah Jones, head of litigation, BBC said she was pleased to see jury trials going because “a lot of preliminary issues you would like to have answers to have to be left over to trial, and for the defendant that could be the difference between being prepared to defend and not.”
On the back of that, she said, there was a new procedure for early determination of questions, which would have otherwise been left to a jury. “On the downside, of course, that may mean there are a lot of satellite applications knocking around, that perhaps otherwise we wouldn’t have seen, I don’t know.”
Pia Sarma, head of legal at the Times, said she was glad to see jury trial issue tackled. Fair comment, as a more “subjective” defence was her main concern, leaving questions still to be answered, such as how a statement of opinion will be established. She wasn’t convinced it mattered whether it was called honest opinion or honest comment.
For Justin Walford, legal manager at the Sun, juries had been a “luxury in the past” which vastly added to costs, so he was pleased by this reduction in costs, but asked for clarification about what conditions would require a jury and at what stage it would be decided. He questioned how the “new procedure for defamation cases” would work. Would it be possible to arbitrate some matters before proceedings were issued, or rather than having to go to a High Court hearing? Issues could be decided early without “wasting huge amounts of time pleading justification pleas to different meanings”.
John Kampfner, CEO, Index on Censorship, while disappointed in the omission of corporations and ISPs, said he saw it as a “good bill” and a good starting point. Section seven of the draft bill, addressing Jurisdiction, is very important, and would deter cases of libel tourism, he said. “The courts must in the future be satisfied that England and Wales are the most appropriate place, not just equivalent, but the most.”
In two fell swoops, by correcting the body of law and dealing with jurisdiction, “this most important area, and one of the greatest symbolism, hopefully will have been tackled.”
The Government’s draft defamation bill, published yesterday:
The daily live transmission of the BBC Focus on Africa programme has been suspended following a report that was critical of the government. The programme, which is broadcast on the state radio, Swaziland Broadcasting and Information Services (SBIS), has been off air for a week. The government has also banned all state media from reporting on protests and strikes currently taking place in the country.
A Minnesota county court has found that a post written on the “Adventures of Johnny Northside” blog led to community official Jerry Moore being fired from the University of Minnesota. Blogger John Hoff must pay Moore $60,000 in damages, which comprises $35,000 for loss of wages and $25,000 for emotional distress. The blog post, which Moore said was untrue, linked him to a high-profile mortgage fraud. Hoff maintains the truth of his allegations.
