Press should have advance warning of super injunctions, say judges

Journalists should be given advance warnings of applications for injunctions or super injunctions, a report by the nation's top judges recommended today.

Journalists should given advance warnings of injunction or superinjunction applications made against their stories, a report by a top judge recommended today.

Lord Neuberger, Master of the Rolls and the most senior civil judge in England and Wales, who produced the report, said this morning:

“Any member of the media who was to be the subject of an injunction (ie an injunction will be taken out against their story) should be informed of the application…

“In many cases the newspaper will not know all the facts so it is necessary to have a confidentiality agreement in place (in such circumstances)… and that is a new development we are recommending.”

The report states that “the procedure will enable the media to be informed about applications in advance as parliament envisaged”.

The report also suggests that fewer injunctions should be given and for shorter periods and that gagging orders in general should only be granted when they are “strictly necessary” and only on a short term basis.  

Lord Neuberger said:

“Where secrecy is ordered it should only be to the extent which it is strictly necessary to achieve the interests of justice.”

The year-long inquiry by a committee of judges and lawyers does not change the law on privacy however. The judges made clear that their role was not to “enlarge or reduce” such laws which was the role of parliament or the supreme court. 

There were some “myth-busting” statements made surrounding the extent of superinjunctions in British laws and their relationship with the courts.

Lord Neuberger said that “injunctions have until about 2010 been granted a bit too readily”, but together with Lord Judge at the press conference this morning, pointed out that “since the (John) Terry case there has only been two superinjunctions as far as we know, one has been overturned and the other lapsed after a week”.

Lord Judge rebutted the idea that the press don’t have the ability to challenge injunctions or have the right of appeal. Lord Judge remarked that the media had been represented in terms of legal counsel at injunction proceedings before, but had not appealed them, asking:

“I wonder why?”

He also said that unelected judges were not strengthening privacy laws, and that this was the “inevitable consequence” of the 1998 Human Right’s Act, in conjunction with the European Convention on Human Rights. Lord Judge:

“The courts have never exerted, nor now are they now exerting any authority or jurisdiction over parliament.”

Lord Neuberger also referred to the issue of parliamentary privilege, which has recently seen a Lord effectively flouting a court order over the reporting of stories about Fred Goodwin’s private life. He said that the law “when it comes to contempt of court” and “reporting what is said in parliament”, is “extraordinarily unclear”.

Lord Neuberger said:

“We have tried to achieve a procedural system which strikes a fair and proper balance between the principles of open justice and freedom of expression for the public and media and an individual’s right to confidentiality and privacy.”

Lord Neuberger said that the law regarding new technology, referring specifically to “bloggers and tweeters” was “something we are going to have to deal with as the matter develops”.

He also said he could well understand the frustrations of print media over the issue of being prevented from reporting something that was already available on the web. However he did point out that the “intrusion” of web chatter was in no way the same as when something is in a national newspaper which is much more “trusted” by the public. This echoes the words of Max Mosley on these pages earlier this week.

Today’s report may be welcomed by Mike Harris, who, writing for Left Foot Forward, presented a contrary opinion on press freedom to Mosley. 

Lord Neuberger concluded in the press conference that “it may be that this report leads to a sea-change”, but stated we would have to wait and see what reaction came from parliament on the issue of privacy.

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