The Use of Super Injunctions by Courts

In pursuing this legal project, I aim to discover the use of ‘Super Injunctions’ as a weapon used by the Courts to gag investigative reporting. I shall also question whether freedom of expression has been jeopardised due to the rise of this novel variety of injunction. In order to do assist me in this task, I shall critically analyse the Minton Report [1] and the principle of open justice. I shall examine its attributes in order to determine whether it is ‘necessary in a democratic society’.I shall then explore the view of the Courts prior to the enactment of the HRA and assess the extent to which these views have been altered since the enactment of the HRA 1998. I shall then make recommendations prescribing how this area of the law should develop.

Chapter one

Introduction to Super injunction

Britain has often been criticised as a secretive state, not least as a reflection of its extensive use of the injunction. [2] There are multiple examples of high status figures and corporations using them to cover up their mistakes [3] , creating a chilling effect on free speech whereby the free flow on free speech is discouraged. Whilst the importance of free speech is consistently acknowledged, recent events have challenged the idea that this is an absolute right which should always be prioritised. .

It would be naive to begin an analysis of the super injunction without recognising that this is not the only instrument which has placed restrictions on court reporting. The publication of family law matters is restricted by the Family Law Act 1975 [4] The Contempt of Court Act 1981 [5] , too, controls what may be published by the press. So what is is that makes the “super injunction” more controversial, for it surely must be more than its mere novelty?

In 2009 the Trafigura case sparked heated debate about the use of the new “Super Injunction”. The Guardian editor, Alan Rusbridger [6] has defined this as a court order that stops the press from anything concerning the case. This means that neither the case can be mentioned nor the injunction itself. This is the respect in which it differs from ordinary injunctions, the existence of which may be reported. Due to its intrinsically secretive nature, the public only knew of its existence when the order was lifted, which raises political and legal concerns relating to transparency. This connotes the principle of open justice, which implies that legitimacy may derived from the mechanism by which the public may openly scrutinise the decision. This is clearly infringed by the essential nature of the super injunction. ‘ The public interest is not the only one which is potentially infringed by the birth of the super injunction. Journalists argue that the super injunction is an ‘infringement upon their right to free speech and free press’ [7] . It is alleged that they threaten the essential balance of freedom of expression and privacy law.It is claimed that the ‘necessary balance is being lost. [8] ’.. Section 12 of the Human Rights Act 1998 is the legal instrument which safeguards freedom of expression. Of particular significance is section 12 (4), which serves to balance the interests we have just outlined. It provides that the “Court must have particular regard to the importance of the Convention right to freedom of expression” in that they must question “the extent to which the material has, or is about to, become available to the public; or it is, or it would be, in the public interest for the material to be published”. Crucially, there is a third factor which must be considered, and that is “any privacy code”. This demonstrates that Parliament has identified the need for the Convention right to be tempered by the relevant public and private interests. The super injunction seems to undermine the protection that this Act affords that balance.

1.3

1.4 The protection of free speech has been recognised since time immemorial The European Convention on Human Rights 1950 recognises the value of [Freedom of expression] by identifying it as a fundamental right. This was enacted into UK law through the Human Rights Act 1998 , which also guarantees Article 8 (Privacy right to respect for family life). Article 10 requires that any restriction placed on Article 10 must have a ‘legitimate aim’ is ‘prescribed by law’ and be ‘necessary in a democratic society’. Many critics suggest that the domestic law was thrown into uncertainty with the incorporation of the [ECHR] stating that the European Court of Human Rights has given countries a wide ‘margin of appreciation’ in how to balance the two conflicting ArticlesThe Culture, Media and Sport Committees report on Press Standards, Privacy and Libel in 2009believe that courts are providing the right balance. The weighing of competing rights in individual cases is the essential task of the courts. Thus, Parliament would be able to intervene only when they can see signs that the Courts are ‘Striking the wrong balance [9] ’.

Chapter two

Super injunction: Is it necessary in a democratic society?

The Culture, Media and Sport committees report on Press Standards, Privacy and Libel, produced in 2010 was the response to the Government’s concern over the use of super injunctions, with it being a ‘serious threat to media freedom in this country to the fabric of open justice democracy [10] ’ Let us consider whether this statement was justified by examining whether super injunctions have a place within a democratic society. The overarching question echoes the wording of Article 10 of the European Convention on Human Rights, which merits close analysis.

2.1 The Minton Report [Trafigura]

2.1.1 Super injunctions represent formidable tools used to restrain investigative reporting. Any restriction on freedom of expression risks compromising the integrity of a democratic society, so how might it be justified?

In order to understand this, we must first clarify the problem with reference to a practical example. The case of Trafigura brought to light the secretiveness of the super injunction and the fact that many of them have been granted to newspapers unknown to the public. Trafigura had commissioned a scientific report called the Minton Report which showed the shocking scale of medical problems caused by the dumping of waste in the Ivory Coast in 2006. When The Guardian got hold of the report ‘Trafigura’s lawyer Carter Ruck obtained a banning order stopping The Guardian from publishing. ‘Trafigura’ alleged that the report was only ‘preliminary’ and had proven to be inaccurate’, after having the super injunction granted at first instance. This was granted on the basis of Article 8, which meant that it was considered necessary in the interests of justice to keep the information unpublished. Paul Farrelly [11] asked a question in Parliament concerning the super injunction, in the public interest, which was then reported. Article 9 of the Bill of Rights 1689 placed a legal obligation on the press to report what happens in Parliament. This is important as democracy requires that Parliament should be both representative and accountable. If the public are not fully informed, this raises questions about whether accountability is really achieved. Nonetheless, one must also consider the conflicting rights protected by Parliamentary privilege, which protects Members of Parliaments’ freedom of expression with regard to what they say in Parliamentary debate. This was a significant aspect of the Trafigura case.

Al

The order was later withdrawn due to the importance of press freedom to report what goes on in parliament.

2.1.2

2.2 Open justice violated by ‘gagging orders’

2.2.1

2.2.2 The principle of open justice is embodied in Article 6(1) of the European Convention of Human Rights. The relevant section states that “(j)udgment shall be pronounced publicly by the press”,Philosopher Onora O’Neill argued that ‘openness is the best way to build public trust and accountability.’ [12] Lord Diplock stressed in Attorney General v Leveller Magazine [13] that “open justice requires that the court should do nothing to discourage fair and accurate reports of proceedings.”. However, this is not unrestricted. Indeed several exceptions are listed in the Civil Procedure Rules at 39.2. In Trafigura, the court relied upon sections (a), (c) and (g) relating to the protected privacy interests which have overridden the concern for freedom of expression.The rules of procedure gives the courts a wide discretion of whether to sit in private. This is seen as upholding the interests of parties and witnesses but does not address the competing requirements of freedom of expression under article 10 of the European Convention on Human Rights, which leads to the question of whether Trafigura were granted an injunction appropriately, since it has been suggested that this may be an example of ‘judges creating privacy laws though the back door’. 2.3

Breach of Confidence

2.3.1 It was established in Coco v A.N. Clark (Engineers) Ltd [14] where Megarry J suggested that for there to be a breach of confidence the information must have the ‘necessary quality’ of confidence’. In Saltman Engineering v Campbell Engineering [15] , Lord Green gave the opinion that the information must not be something which is public property or of public knowledge. An incident which took place in a public place and would be known to everyone that was present would not be classified as confidential information.

A person who has any knowledge of protected information should be prevented from disclosing it to others. Third parties such as journalists in possession of information known to be confidential would be bound by this duty. The House of the Lords [16] stressed that there was no absolute rule that a third party who receives confidential information will be restrained from using it. Nonetheless, where the information has a public interest justification, the information can be disclosed.. The breach of confidence argument was put forward on the basis that the Minton Report was confidential. However, it seems that it had lost is confidential value as information about the report was already circulating around. However, as expressed by Blake J, not all information of confidentiality that is in the public domain would lose its ‘necessary quality of confidence’.

2.3.4 However, in Observer and Guardian v. United Kingdom [17] , a book that contained the memoir of an ex secret agent was published in three different countries. The defendants were prevented from publishing in the UK even though the books were already considered to be in the public domain. Lord Griffiths in the Court of Appea said that “since the information was in the public domain and no longer confidential, no further damage could be done to the public interest that had not already been done. [18] ” The Minton report in the Trafigura case was freely available on the internet, which reflects the fact patterns discussed here.

2.4 Contempt of Court

2.4.1 This final heading is concerned with Carter-Rucks’ argument that the Guardian should have been placed in contempt of court for reporting a parliamentary question by Paul Farrelly MP about the injunction obtained.

2.4.2 The case of Sunday Times v United Kingdom [19] sets out the basic authority of contempt. In the following case Distillers had manufactured a drug called Thalidomide which was made for pregnant women to take during their pregnancy. A number of women had taken it and had given birth to babies with severe deformities. The drugs were then removed from the market and by 1971 numerous claimants brought an action against the company for negligence. However, the Sunday Times published one article and had proposed to write another when the Attorney General initiated proceedings with regard to the second article which would have explored the history of the drugs and questioned whether the company had undertaken proper care in allowing the drug to come to the market. Ultimately the High Court granted an injunction against the second article on the grounds that it might prejudice the ‘free choice and conduct of the parties’. Further, on Appeal the Court of Appeal discharged the injunction on the basis that ‘the proceedings in question were dormant the public interest discussion outweighed any potential prejudice’. Crucially, again the Sunday Times took the case to the European Court of Human Rights [ECHR] where it was acknowledged that there had been a restriction of the applicants freedom of expression under Article 10 and that such restriction had to be justified within the terms of Article 10 [2]. The ECHR found the injunction did not correspond to a social need sufficiently pressing to ‘outweigh the public interest in publication of the Articles at issue [20] ’. The government means were not proportionate to its aim and therefore were not necessary in a democratic society.

2.4. In the light of The Sunday Times caseit was made clear that British Courts had failed to ‘accommodate the public interest argument in favour of free speech’. Consequently parliament passed the Contempt of Court Act 1981.

2.4.2 Section 4 (2) of this Act confers the power to order for a postponement of a publication if it is believed that the reporting would create a substantial risk. The courts have insisted that before the granting of the order they take into consideration freedom of expression and the open justice principle.. However, there seems to be difficulty in respect to section 4 [2] orders. Journalists have shown concerns about the principles under which the restrictions are invoked.There is a little possibility for challenge since the leading application for restriction orders is sometimes heard in camera, although it is admitted that journalists must be given the opportunity to make representations if they wish to lift the injunction. This also makes it difficult for the public and the press to judge the necessity of suppression. Moreover, such orders may only be challenged by a judicial review, which is frequently expensive and an inconvenient process.

2.4.3 A second difficulty arises from the fact that reporting can be restricted under Section 11. A court may not make an s.11. order prohibiting publication of a defendant’s address unless the administration of justice requires such confidentiality. Lord Justice Watkins made the point forcefully in the leading case of R. v. Evesham Justices ex parte McDonagh [21] In R. v. Carroll, Sherwill and Tully [22] at Liverpool Crown Court, the Recorder of Liverpool, Judge David Clarke QC, faced an application from defendants claiming that their addresses should not be given because they feared revenge attacks, and publication of their addresses would infringe their rights under Article 8. The Judge rejected the application, saying the defendants’ position was no different to that of anyone else facing a criminal trial.

It should be noted that Article 6 of the ECHR guarantees the right to a fair public and open trial which of course includes the proper and full identification of all the defendants. It is, after all, a principle that public and open trials help to maintain confidence in the judiciary and the judicial system, and act as a protection for the individual. Again the principle was quoted by the House of Lords in that “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against impropriety. It keeps the Judge himself, while trying, under trial …” [23]

2.4.4 There are alternative areas offering journalists protection specifically to challenge the super injunction order. Section 4 [1] states that “a person is not guilty of a contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” . The application of this is impeded by the lack of authority which could clarify what is meant by “in good faith”.

2.4.5 It appears that section 5 of Contempt of Court Act 1981 is the most powerful defence available for journalists whose freedom of expression has been breached. Attorney-General v. English, [24] , was the case that established this defence. Here, a journalist faced contempt proceedings for publishing an article about a disabled pro-life candidate at the same time as the trial of a doctor for euthanasia was pending. The House of Lords held that, although there was a risk of prejudice to a fair trial, the defense under section 5 had been established because(1) there was a discussion in good faith of public affairs and matters of general interest, and(2) the risk of prejudice to the trial was merely incidental to the discussion. Lord Diplock emphasized that “the publication was made, in undisputed good faith, as a discussion of public affairs [25] “. This principle was extended in Attorney General v Times Newspaper to cover a situation where the case is mentioned expressly. This case involved Michael Fagin who had broken into the Queens bedroom and was facing criminal charges. In his trial there appeared to be a substantial risk of prejudice, however it was held that the prejudice was within the ambit of section 5. This demonstrates the significance attributed to the public interest, and acts as a potent argument against the super injunctions which threaten this.

2.5 It appears that although there are mechanisms available for press to challenge super injunctions the process appears to be expensive.

Chapter three

Super injunction: ‘The development of case law prior to and since the HRA’.

3.1 Opinions of the courts prior to the Human Rights Act

3.1.1 It has to be noted, here, that because of its secretive nature it is very difficult to find cases relating to the super injunction prior to the HRA. However, it is important to establish the opinion of the courts just prior to the enactment of the HRA to highlight any changes in post HRA cases. The case of American Cyanamid Co. v Ethicon Ltd [26] , set out the requirement that the court had to take into consideration the arguments of the parties, and consider whether the claimant had a real prospect of success at full trial and to decide the “balance of convenience,” before granting the order. This is where the court has to balance the harm which would be caused by publication against that resulting from disallowing publication.

3.2 The Human Rights Act 1998

Section 3 of the Human Rights Act 1998 requires that legislation should be interpreted in a way compatible with convention rights in “[s]o far as it is possible to do so”. Section 6 (1) makes it unlawful for a public authority, rather than a private individual, to act incompatibly with the Convention. According to section 6(3)[a], a court is considered to represent a “public authority” and since it is unlawful for such an authority to act incompatibly with the convention, then “a court will be unable to give a lawful judgment, if a Convention point arises, except in accordance with that right”. Therefore, the courts must take the Convention rights into account when exercising discretion, such as when ordering an injunction.

3.2.1 Article 10 governs the right to freedom of expression, which is not to be considered more important than any other Convention right.. However, Clayton and Tomlinson [27] say “it appears that this subsection is intended to tip the balance in favour of expression in application for injunctions to restrain breaches of privacy”. This is significant as it suggests that the introduction of the Human Rights Act 1998 symbolised the prioritising of freedom of expression. But Leister and Pannick [28] insisted that section 12 ‘serves no sensible purposes” and further that s12 does affect breach of confidence claims that has already been brought to protect privacy and that the government did not intend the Judges to do anything other than to apply the Human Rights Convention as the intention as explained by Jack Straw [29] was that as “far as we are able in a manner consistent with the convention and its jurisprudence, we are saying to the Courts, that whenever there is a clash between Article 8 rights and Article 10 rights, they must pay particular attention to Article 10 right.” [30] This provides important guidance as to the appropriate balancing of these rights, which must also be tempered by a consideration of Article 6, as discussed above. I shall expand on this presently in my discussion of the open justice principle.

3.3 Opinion of the courts since the Human Rights Act

3.3.1 The cases which have been decided since the enactment of the HRA provided an insight into whether the courts are willing to deviate from their former opinion. There seems to be disagreement amongst judges with respect to the status of freedom of expression under s12 HRA, especially, s12 [3] of the Act and the rule on granting interim relief . The case of Imutran v Uncaged [31] was the first case after the implementation of the HRA in which the High Court had to decide the effect of the requirement in section 12. This case concerned an animal organisation who obtained confidential files of a research company carrying out transplants of animal organs into humans. The organisation published the information on their website. The company secured a closure of the site and obtained an injunction to prohibit further publication. An injunction was granted at first instance. In the High Court it was held that the requirement needed to satisfy s12 HRA was not the balance of probabilities, but rather whether the information was confidential,. They found that the balance favoured the granting of an injunction, despite the public interest considerations. This is significant in relation to super injunctions, since, when applying the 1998 Act, the balance seems to lie in favour of protecting privacy rather than freedom of expression.

Sir Andrew Morritt VC stated that the word ‘likelihood’ in s12 [4] was only ‘slightly higher in the scale of probability’ than whether a case had a ‘real prospect of success’. He went on further by stating that s12 [4] “was not intended to direct the court to place greater weight on the importance of freedom of expression than already did prior to the Act. [32] ” Here it appears that courts are placing ‘great weight’ on a person’s commercial interest over and above matters of public concern. Further, in Venables and Thompson v MGN [33] , the court held that the act required them to pay special regard to freedom of speech it was no longer appropriate to conduct a balancing exercise, but instead to apply the principle that any interference with the right in Article 10[1] had to be shown to fall within the exception permitted in Article 10 [2] [34] . The Venables case is a depature from the previous case and slightly confusing upon its interpretation due to the courts paying special regards to freedom of expression and so one would understandably question the coherence of this area of the law.

3.3.2 It was not long after the decision in Venables until this issue was clarified in Cream Holdings v Banjaree and another. [35] This case emphasized the importance of freedom of the press, The House of the Lords had accepted that s12 had created a ‘stricter test’ and did not require the courts to give freedom of expression a higher order. In this case a former employee and a newspaper attempted to publish articles which related to the business in which the employee had previously worked. The information alleged that the company had taken part in illegal activities and the company sought an interim injunction to restrain the defendant from publishing. The defendant then admitted that the information was confidential and relied on the defence of public interest and challenged the order on the grounds that having particular regard to that defence the claimants were not likely to succeed. In the Court of Appeal it was confirmed that the test for granting an injunction that interfered with free speech depended on the basis that the claimant had to show that they had a real prospect of success; and not that the claimant would succeed on the balance of ‘probabilities’. On the facts the Court of Appeal upheld the order,,although the judges differed in their reasoning .

3.3.3 This finding demonstrates the importance of interpreting the law in accordance with Parliamentary intention, in that Parliament intended that the word ‘likely’ should have an extended meaning. Therefore there must be a likelihood of success at the trial before granting an injunction. Vinemont J further stated “this required the court to be satisfied there is a ‘prospect sufficiently likely in the light of all the other circumstances of the case to justify making the order [36] “. Lord Nicholls of Birkenhead recognised that the degree of “ likelihood makes the prospects of success ‘sufficiently favourable” he further explained that “ the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably [‘more likely than not’] succeed at the trial”.

3.3.4 Cream Holdings has clarified as the requirement of s12 as there should be a likelihood of success as set out above. This requirement has been recently considered in John Terry [Previously referred to LNS] v Persons Unknown, LNS. There has been much debate over the outcome of this landmark case. Some have commented that “[w]hile the Judge had reached a satisfactory result whilst others see it as a “manifesto judgement which sets out a stricter approach”. Some journalists see it as a victory on freedom of speech and a way forward from these ‘gagging orders’. In John Terry [Previously referred to LNS] v Persons Unknown, LNS [37] had allegedly had an affair with his teammates’ ex-girlfriend and wanted to prevent the media from publishing the matter. No notice had been given to the media; LNS had applied for a super injunction banning the publication of any details of the relationship being published, any information leading to the identification of the ex-girl friend and any photographs relating to the matter. However, it was alleged that the information LNS tried to forbid had already been circulated by ‘word of mouth’, and as such it was no longer confidential. LNS was not successful in his claim as the judge believed that LNS was more concerned about what the publication would do to his reputation as LNS had obtained sponsorship from companies for a well known brand. Also of significant importance is Justice Tugendhat’s commentary on the open justice principle. He identified that the super injunction derogates from open justice and fair trial he identified that:

(1) a private hearing,(2) anonymity for the persons involved in the Relationship, (3) that the entire court file should be sealed pursuant to CPR 5.4C(7),  (4) that the order should prohibit publication of the existence of these proceedings, and that it should do so not just until service of the proceedings, or until a return date…..”,

Justice Tugendhat emphasised that although there is a conflict between Article 8 and Article 10 he suggested that Article 8 does not have a presumptive priority over Article 6 and the open justice principle. He referred to Lor