The right to freedom of expression suffered a further blow yesterday when the High Court imposed a contra mundum injunction in a privacy case for the first time.
The right to freedom of expression suffered a further blow yesterday when the High Court imposed a contra mundum injunction in a privacy case for the first time. It follows the latest injunction imposed by the courts to prevent a former Big Brother contestant revealing details of an affair with a Premier League footballer.
Injunctions have also recently been imposed in the cases of a married man “in the entertainment business” reported to have had an affair with a married woman, and the case of a married actor and a prostitute previously linked to Wayne Rooney.
Andy Davies, Channel Four News’s home affairs correspondent, has more:
While on the contra mundum injunction, today’s Mirror reports:
“The decision marks a further move by the courts to extend protection of the right to respect for private and family life under Article 8 of the European Convention on Human Rights, which has also seen an injunction preventing prostitute Helen Wood revealing the identity of a high-profile married actor who she claims was a client.
“But this injunction against the world simultaneously represents a further advance in how far the courts are prepared to go in restricting the right to freedom of expression under Article 10 of the Convention.”
“Mr Justice Eady said the interim injunction was served on the media to take advantage of the Spycatcher doctrine that anyone who knew of the order and disclosed the confidential information would be liable to be punished for criminal contempt of court. Eventually an agreement between the parties which included an undertaking not to publish any of the confidential information meant there was no longer any need for the proceedings to be continued against the defendants or for a trial.
“Mr Justice Eady said it was generally thought that, once a permanent injunction was obtained, or an undertaking given to similar effect, the Spycatcher doctrine would no longer apply. But James Price QC, for OPQ, had said that when the Spycatcher doctrine no longer applied, fresh steps would have to be taken to protect his client as there was good reason to believe the allegations might be published in the media once it was thought the restraints had fallen away.
“The judge said the jurisdiction to grant an injunction contra mundum – one of general effect – was ‘widened, at first rather tentatively’ immediately following the Human Rights Act 1998. But now, as a consequence of the Act, there was a new era, he said, adding: ‘It was accepted that remedies had to be fashioned to meet the needs of the particular case in the light of the European Convention.’
“Mr Justice Eady said it was now acknowledged that the court’s power to grant an injunction contra mundum was ‘available, wherever necessary and proportionate, for the protection of Convention rights whether of children or adults’.”
Earlier this week, Liberal Democrat MP John Hemming warned that a new breed of gagging orders – which he has dubbed “quaero injunctions” – could see journalists sent to jail merely for asking questions; while earlier this month, Hemming warned of a new breed of “hyperinjunction”, oppressive court orders which forbid the recipient from even talking about their case with their MP.
Hemming told Monday’s Guardian:
“This goes a step further than preventing people speaking out against injustice. It has the effect of preventing journalists from speaking to people subject to this injunction without a risk of the journalist going to jail. That is a recipe for hiding miscarriages of justice…
“It puts any investigative journalist at risk if they ask any questions of a victim of a potential miscarriage of justice… I don’t think this should be allowed in English courts.
“What is clear is that almost all of the superinjunctions and hyperinjunctions have no public judgment – that means that they are not compliant with the rules for a fair trial. There is also the question as to whether there should be an automatic time limit on an interim order. Many cases have an interim order and no final hearing. This is clearly wrong.
“We also need to know what the costs are both for the applicant and for the media in defending these orders. It is wrong to have a system whereby people can buy the sort of justice they want. That is a contravention of clause 29 of Magna Carta 1297, which is still in force.”
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“The mention of rights requires some explanation… There appears to be some confusion over the reason for the rise of super-injunctions.
“Some editors seem to believe their use is linked to the European Convention on Human Rights because of the way judges refer to protecting the privacy of plaintiffs. In fact they should be seen instead as a natural progression of English common law and they did not emerge suddenly in 2009. In the past, similar orders were granted to protect commercial secrets and have also been used to protect children.
“But the danger is clear. We have a long tradition of open justice, and many lawyers are worried about the growth of secret procedures where legal decisions are made without public scrutiny. In fact, so great were the legal community’s concerns that a committee of judges was set up, headed by Master of the Rolls, Lord Neuberger, to inquire into the use of super-injunctions.
“We are led to believe that a report on their findings is imminent. But will it please lawyers or editors?”