Sunday, May 01, 2011

Super-injunctions, a few thoughts...

So-called super-injunctions are big news at the moment and they are important. The issues raised are at the very heart of a free society; the tension between the right to free speech and the right to privacy.

So what is a super-injunction anyway?
In the past it was possible, under certain circumstances to get an injunction form a High-Court Judge to prevent (usually) a newspaper from publishing a story about you. The news of the existences of said injunction would then be reported (Mr Smith, the famous actor has taken out an injunction against the Daily News, preventing them from running a story about him...) this would in effect mean that the story would get out anyway. Super-injunctions have thus evolved to give extra restrictions - so that the names of people involved and specific details cannot be reported.

The Right to Privacy
Legal rights has a very interesting history. The Magna Carta was very much the beginning - the then radical concept that anyone who wasn't King had some basic rights. In the UK, since the Magna Carta we didn't do very much for over 750 years. Whilst the United States had a Bill of Rights, we in the UK had no codified rights.

The Human Rights Act (1998) changed that.* As a consequence, judges had a stricter understanding of 'privacy' as a reason for granting an injunction. Previously, a story generally had to be demonstrably libellous for an injunction to be granted. Because we do not have any statute law on privacy itself, it has evolved as case law only. Unless and until Parliament legislates it is only the legal precedent that forms the law.

As I understand it, the current situation is that an injunction will be granted if the claimant can demonstrate that the story invades their privacy and the respondent does not demonstrate an over-riding public interest in the story. The ideal that publishing a story is 'in the public interest' has a specific meaning. It is not the same as saying people are interested in it. For example, if the Secretary of State for Defence was having an affair with a foreign national, that would clearly have National Security implications and the public would have a right to know, despite the fact that it would invade the privacy of the people involved.

So, The Argument
  • Ian Hislop has been quite eloquent in arguing against Super-injunctions. Especially when arguing that in cases involving the sex-lives of footballers, it's difficult to argue that the public needs to know, but when it comes to more important issues, there is a great danger in gagging the media.
  • Similarly, the press is generally constantly complaining about any infringement of their Right to free speech - arguing that a free press is absolutely vital to a free society.
Free Press and Free Speech
There is no louder advocate for the free press than the press themselves. They seem to feel that the argument is so compelling, so self-evident that they rarely bother to articulate it; so I will.

The only guarantee of freedom in society is that those who make and control the laws are not above the law. That corruption, when it does occur, is brought to the light of day and ultimately anyone who holds power in a nation is accountable for how they use that power. This is true and the state-controlled media of oppressive regimens over the years and across the world bear-out this assertion.

But, I do not believe in freedom without responsibility. For me, it is that lack of responsibility that is at the heart of the problem. The media, for too long, has used that argument to excuse any excesses, any damage they cause, because they are really fighting for our freedom.

Furthermore, the principal that free-speech is not an absolute right is well established - this is why we have libel laws - however good or bad they may be. You cannot print demonstrably false and damaging information about people.

Privacy vs Free Speech
If you ever talk to anyone who knows about Human Rights law, the conflict of various rights is always the most challenging and most interesting area. There is clearly a clash of rights in this situation.  The Right to Privacy is a vital one. One may argue that anyone in the public eye who has an affair, deserves whatever they get and should forfeit that right. Quite apart from the fact that - as a wise man once said - it should only be he who is without sin who casts the first stone (and the press are unbelievably hypocritical about this) there are always innocent people involved. I do wonder how Coleen Rooney felt about the stories of Wayne's exploits with various women. I suspect she would have preferred it, if it wasn't all in the public eye. When children are involved, the judges have a stricter view of privacy and I suspect most people would agree with this.

I do not think that anyone in the public eye has given up their rights to a private life. Whilst, like most I have naturally less sympathy for people who have deliberately courted publicity compared with others who are simply thrust into the public eye.

I do think that free speech is really important, for all of us as individuals and for the media. Therefore judges should be very careful (as should legislators) whenever they seek to curtail free speech. However, I think This Story demonstrates how we all need protecting from 'free speech.' We all have a right not to have our lives invaded.

The Public Interest Argument
As I said above, the argument that a story is 'in the public interest' will normally override someone's right to privacy. I agree with this.

Given that the concept exists, some have sought to define the public interest as widely as possible. Paul Dacre is editor of the Daily Mail. He is also chair of the Press Complaints Commission Editors Code of Practice Committee. In 2008, speaking to the Society of Editors, he put forward the following argument:
  • A free society depends on a free press
  • A free press can only exist where you have a plurality of press organsiations
  • Therefore newspapers need to be commercially viable in order to continue to exist as a free press
  • In order to be commercially viable, newspapers need sensationalist stories
  • Thus, in order to protect all of our freedom, the press needs to be allowed to publish salacious stories
It is an impressively honest and open statement, if nothing else.

Ultimately, I have a lot of sympathy for super-injunctions although their extent concerns me. Mr Dacre's argument I think is obscene, especially when you look at the kind of thing the Daily Mail publishes. Essentially the argument boils down to The press should be the only arbiter of what we do and we can publish whatever we want because we need to in order to carry on existing and protecting everyone's freedom. The idea that someone he has the right to make such decisions, to sacrifice other people's privacy and quality of life to some supposed higher-good is absolutely horrific. There are many many indirect victims who are often totally innocent when the press has complete free-reign like this. (Max Mosley has described how his children were affected by the stories about him in the press which turned out to be significantly inaccurate.)

The newspapers - and many others to be fair - believe that (unelected) judges have no right to be making privacy law and in essence they are undermining the supremacy of Parliament to make this law. I have very little sympathy for this argument for two reasons. Firstly, judge-made law - or case law as it's known -  is well established in English Law. Where the Acts of Parliament do not quite specify what the law is, legal precedent guides judges and where no precedent exists, judges will look at established principals and then make a decision. These decisions may be over-turned by a higher court or revised by Act of Parliament and that is how our legal system works. Secondly, the solution is for Parliament to act. However I think it is politically almost impossible for anyone to bring forward a meaningful privacy law in Parliament because of the way the press will report it. Can you imagine the headlines? Given how the press jump on anyone who seeks to regulate them at all... So, the fact that privacy is only shaped by case law in the UK is hugely the media's own fault.

The Super-injunction that Trafigura Beheer BV were able to get against The Guardian concerns me greatly. I do not think this injunction should have been granted. However the majority seem to be about stories with no true public interest and I have no sympathy with the media complaining about it as they have only themselves to blame. If we had a responsible media, we wouldn't be in this situation.

Disclaimer: I speak with great confidence on some issues but not others. I am not a legal professional, just an interested amateur - if any real legal experts wish to correct me on details, please do. 


*Human Rights Act (1998) established in British law the European Convention on Human Rights. Most of what you read about the ECHR in the press is entirely inaccurate. Firstly the only connection between the ECHR and the European Union is that they both contain the word 'Europe.' Secondly this is a unique piece of legislation as it only applies to the government; it provides that the state may not infringe on your rights - for example they cannot imprison you without a fair trial or summarily execute you. It was formed by the Council of Europe in 1950 as a response to the horrors of Nazi Germany. Thirdly it is not Europeans imposing their laws on us - arguably it's the opposite as essentially it was Britain who drafted the convention in the first place. I think it is a great national shame that it took us nearly 50 years to sign up to it. 

The effect of the HRA(1998) in leading to privacy law is an interesting one - as I understand it the argument is that the courts as an organ of the state are compelled to act to protect a citizen's privacy even though it is not necessarily the state itself that is threatening it. I would be very interested to know from any real experts if this was an unintended consequence of the law or whether this effect was entirely predicted.


claret said...

I guess my issue with 'super-injunctions' is that they are only available to the rich

Anonymous said...

I like it very much!

Alwyn said...

Thank for your thought-provoking comments; they help to balance the confusion and misinformation on these issues.

Your piece got me thinking about privacy. In addition to the free speech argument, there seems to be a relatively new argument: the 'privacy is obselete' point of view.

For some people (including some people who are comfortable with personal stuff on Facebook being visible to anyone, or who blog or tweet about personal matters) privacy may seen like a quaint relic of previous decades - like communicating with friends using letters sent through the post or doing without a mobile phone. For some people, privacy doesn't matter. I'm not saying that these people are wrong - I'm just making the point that not everyone feels like that about privacy.

The following analogy is so rough that you could use it for sandpaper. I'm not a sports fan. I don't see sports as bad or evil. I wouldn't want to prevent anyone else from taking part in or watching sports. They're just not my cup of coffee. Nevertheless, I would not want the State (or other powerful organisations) to be able to arbitrarily interfere with sports - because sports matter deeply to some people. So does privacy.

In a liberal democracy, different people should be free to value different things. Some people do value privacy. The media aren't the State, but media corporations have (like the State) power to affect public opinion, which affects law and policy. As you showed media corporations can misuse their power (just as States can, leading to calls for human rights protection). A right to privacy, alongside a right to free expression, provides a bit of protection from that misuse.

I agree with you that the use of super-injunctions by corporations is troubling. For me, this problem is not about super-injunctions themselves - it's a problem with the idea that corporations can claim human rights. For me, human rights belong to all humans - and only to humans, not corporations.

I agree with the earlier comment that it's a shame that only rich people seem to be able to afford this protection; for me, that's a reason for improving access to justice, not for removing this protection.