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Libel reform and ‘super-injunctions’

The New Statesman has a leader about libel laws this week. It adds its voice to a growing campaign to reform those laws, which was recently advocated in a report from Index on Censorship and English PEN.  I have a lot of sympathy with the argument that the law of defamation raises free speech problems. However, the first paragraph of the New Statesman article mentions the problem of ‘super injunctions’ and the Trafigura/Guardian case. While there are lots of pressing problems with libel laws – such as the costs of litigation, the complexity of the proceedings, the reverse burden of proof and the impact of conditional fee agreements – the possibility of getting a pre-trial injunction to stop the publication of a defamatory article is not among them. There is a longstanding rule against prior restraints in defamation actions (from a case called Bonnard v Perryman), which sets a very high threshold for litigants to gain a pre-trial injunction. This is one part of defamation law that is very pro-free speech.

The injunction that Trafigura obtained against The Guardian was, as I understand it, in a claim for breach of confidence (to stop the publication of a confidential internal document), not defamation. The use of a ‘super injunction’ is more likely to arise in a claim in the developing law of privacy or in breach of confidence. None of this is to say that defamation law or ‘super injunctions’ are without problems – the point is that we should be clear what we are complaining about. Libel reform and ‘super injunctions’ are separate issues. Much of the media discussion tends to lump the two together, and some of the contributions to a parliamentary debate on ‘super injunctions’ did the same.

I mentioned that the rule against prior restraints is one part of defamation law that is pro-free speech. As a result, the rule has been criticised for giving too much protection to speech. In this line of argument, it is thought that by setting a very high threshold for a pre-trial injunction in libel cases, the law under-protects reputation and gives automatic priority to expression rights. To support the argument, critics can point to the recent jurisprudence from the European Court of Human Rights which has found that a person’s reputation is protected under Article 8 of the European Convention (which protects private and family life). The argument goes that the rights  (reputation and freedom of expression) are of equal status and one should not be given priority over the other. In order to place rights to reputation on an equal footing with free speech, the argument suggests that the rule against prior restraints should be changed to make it easier to get a pre-trial injunction for libel. So far, the English courts have not taken such a view. However, on 1 December, Sir David Eady touched on this issue in his keynote address to a conference on privacy and free speech, in which he asked:

‘… will the rule in Bonnard v Perryman survive scrutiny in the light of the Strasbourg jurisprudence, given that its effect is to build in an automatic priority for Article 10?’

If the rule against prior restrains does not survive this scrutiny, then one effect of the European Convention will be to erode the one part of the law of libel that does robustly protect free speech. But that move has yet to happen.

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