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Report acknowledges difficulties in enforcing super-injunctions on websites

20 May 2011

Enforcing a super-injunction on a website was a “more difficult” challenge but the resulting breach was “by no means the same intrusion of privacy as being on the front page of a newspaper”, Lord Neuberger has said.

Reporting as head of the committee set up to review super-injunctions, the Master of the Rolls confirmed that derogations to the principle of open justice should only be allowed in exceptional circumstances, but suggested it was not feasible at this stage to make recommendations on the enforceability of super-injunctions on internet-based entities such as bloggers or twitter users.

There would be no reason to grant an injunction if news was genuinely ‘out there’, Lord Neuberger said, but if news had only appeared on a few blogs there could still be a reason to do so.

Referring to some of the appeal cases where he upheld the granting of injunctions, he said it was “more difficult” to stop publication on the web but he justified the committee’s position saying that subsequent reports of these cases on websites that purported to reveal the identity of the individuals involved were inaccurate. “The web is not a reliable place,” he said.

“The web adds to the difficulties in enforcement, there is no doubt about that,” he added. If the information goes on the web this is by no means the same intrusion of privacy as being on the front page of a newspaper,” he said. “I understand the media’s concern and it is one we are going to have to face.”

The Lord Chief Justice, who was an observer on the committee, added that national newspapers should remain the focus of privacy injunctions until technology caught up with the internet and made it possible to enforce super-injunctions on web-based organisations. The reason, he said, was that “people are more likely to pay attention to national newspapers”.

But Lord Judge suggested the regulation of the internet should be considered in the longer term. “Why are we assuming that the world of communications can never be brought under control by other technological developments?” he asked. In the same way that it was now possible to stop the circulation of pornographic material involving children – or at least reduce the risk of their circulation – it ought to be possible with injuncted material, he said.

The Lord Chief Justice added that while we were currently at the mercy of modern technology, it didn’t mean that websites couldn’t one day be brought under control and that injunctions could effectively be enforced “to prevent the peddling of lies”.

Speaking at the press conference accompanying the publication of the report, Lord Neuberger also sought to address media concerns that super-injunctions were granted behind closed doors without the press being informed.

The draft guidance issued with the report reinforces the requirement that individuals applying for super-injunctions should notify the publication which is the object of the application (see box). This, Lord Neuberger said, should enable members of the press to know about the application.

The Master of the Rolls said he was anxious that hearings should take place in public and that this should remain the rule in the Court of Appeal, where sensitive information could be discussed by reference to the documents containing this information. But he said this was not always feasible with initial applications where “things tend to be rushed” and it was more difficult to hear the application in public. “If possible it will be, but often it can’t.”

Lord Judge added that the issue of open justice and super-injunctions wasn’t just about the media. People applied for super-injunctions to protect themselves from blackmail or protect their children from media intrusion, he said.

Talking directly to the press audience he said that most of the time where an injunction involved the media, the respondent newspaper was there and had been given notice. The reason why the press rarely opposed an application and or appeal it, he suggested, was because they had been told by their legal advisers that the application was “perfectly valid under current privacy laws”. If the media were unhappy with the state of privacy laws, this was a matter they should take up with parliament, he said.

Neither the Master of the Rolls nor the Lord Chief Justice gave details of how they proposed to tackle the separate issue of parliamentary privilege other than say they would have conference with the speaker of the house. Only last week Lord Stoneham’s intervention in the Lords led to the lifting of an injunction banning the reporting allegations that former RBS chief Fred Goodwin had an affair with a senior member of staff.

“It’s wonderful for the press if an MP stands up and speaks to the effect that a court order is being breached. It’s a very serious issue,” Lord Judge said.

Super-injunction committee – who’s who

Lord Neuberger of Abbotsbury, Master of the Rolls and Head of Civil Justice.

Desmond Browne QC, barrister, 5 Raymond Buildings.

Rod Christie-Miller, partner and chief executive at Schillings.

Michelle Dyson, head of legal policy, Ministry of Justice.

Lord Justice Moore-Bick, deputy head of Civil Justice.

Marcus Partington, chair of Media Lawyers Association, and deputy secretary/group Legal Director, Trinity Mirror Plc.

Alasdair Pepper, partner at Carter-Ruck.

Gillian Phillips, director of Editorial Legal Services, The Guardian.

John Sorabji, barrister, legal secretary to the Master of the Rolls.

Mr Justice Tugendhat, judge in charge of the jury/non-jury lists.

Lord Judge, Lord Chief Justice, attended the committee meetings as an observer.

Report of the committee on super-injunctions – key guidance

Open justice

12. There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done.

13. The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence.

15. It will only be in the rarest cases that an interim non-disclosure order containing a prohibition on reporting the fact of proceedings (a super-injunction) will be justified on grounds of strict necessity, i.e. anti-tipping-off situations, where short-term secrecy is required to ensure the applicant can notify the respondent that the order is made.

Consent orders

16. Interim non-disclosure orders which contain derogations from the principle of open justice cannot be granted by consent of the parties. […] Parties cannot waive or give up the rights of the public.

Notice of application

19. […] Both respondents and any non-parties to be served with the order are therefore entitled to advance notice of the application hearing and should be served with a copy of the application notice and any supporting documentation before that hearing.

20. Applicants will need to satisfy the court that all reasonable and practical steps have been taken to provide advance notice of the application.

21. Failure to provide advance notice can only be justified, on clear and cogent evidence, by compelling reasons. Examples which may amount to compelling reasons, depending on the facts of the case, are: that there is a real prospect that were a respondent or non-party to be notified they would take steps to defeat the order’s purpose […], for instance, where there is convincing evidence that the respondent is seeking to blackmail the applicant.

22. Where a respondent, or non-party, is a media organisation only rarely will there be compelling reasons why advance notification is or was not possible on grounds of either urgency or secrecy. It will only be in truly exceptional circumstances that failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order. Different considerations may however arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, or where, for instance, there are allegations of blackmail.

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