Archive for December, 2010

Super-injunctions: artificial construct or legal term?

December 13, 2010 Leave a comment

In March this year, Sir David Eady was reported to have told a conference at City University:

Super-injunctions are something of an artificial construct, blown up by the media recently. I’d never heard the term till it was mentioned till a few months ago.

The term is now used by the courts. The first appearance in a law report was in John Terry v Persons Unknown (2010):

Orders have from time to time been made prohibiting the disclosure of the fact that an order has been made and providing for sealing the whole court file. Some newspapers refer to these as ‘super injunctions’. I shall consider such orders below.

Then in AMM v HXW (October 2010) at para [49], Tugendat referred to an application for a “so-called super injunction” in another case. A couple of weeks later Tugenhat made another reference to “a so-called super-injunction” in Gray v UVW (October 2010). In November, in the Howard Donald case the Court of Appeal seemed to embrace the term more directly, with Maurice Kay LJ stating:

On 26 April 2010 Eady J granted an anonymised claimant an injunction restraining an anonymised defendant from doing specified but unpublishable things and further restraining the defendant and others from publishing the fact that the injunction had been sought and obtained. This type of relief has become known as a superinjunction.

In the judgment, the term “super-injunction” is used in several places, eg: “… the next question is whether it should retain its superinjunction and anonymity elements” and “Superinjunctions attract understandable controversy. Sometimes it is the product of more heat than light.”

The point is that the term “super-injunction” is no longer qualified as being “so-called” or as a term used by the newspapers. Instead, the Court of Appeal is itself using the term itself to describe this type of relief. So it seesm to have gone from being an “artificial construct” used by the press to a legal term used by the court.

Categories: Media

Woolas, false statements and free speech

December 9, 2010 Leave a comment

Comments on the electoral offence at the heart of the Phil Woolas case can be found here.

My is point is not about application of the law in the Woolas case or to suggest that there is an unlimited freedom to make false statements, instead it is just to highlight the rationale and some of the consequences of the existing electoral offence.

One point that I do not address is the approach to freedom of expression taken in that case. In particular, the court suggested that statements made dishonestly are excluded from the protection of Article 10. Thomas LJ stated:

Dishonest statements are aimed at the destruction of the rights of the public to free elections (Article 3 of the First Protocol) and the right of each candidate to his reputation (Article 8(1)). Article 10 does not protect a right to publish statements which the publisher knows to be false; similarly Article 17 which provides:

“Nothing in the Convention may be interpreted as implying for any … person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The right of freedom of expression does not extend to the publishing, before or during an election for the purpose of affecting the return of any candidate at an election, of a statement that is made dishonestly, that is to say when the publisher knows that statement to be false or does not believe it to be true. It matters not whether such a statement relates to the political position of a candidate or to the personal character or conduct of a candidate when the publisher or maker makes that statement dishonestly. The right to freedom of expression under Article 10 does not extend to a right to be dishonest and tell lies, but s.106 is more limited in its scope as it refers to false statements made in relation to a candidate’s personal character or conduct.

It is one thing to say that expression rights are outweighed when the speaker makes a knowingly false statement of fact, but it is another to say that it is excluded from Article 10 (and can therefore be subject to disproportionate penalties). The difficulty with the court’s reasoning is that it suggests  a statement which impinges on a person’s reputation is aimed at the destruction of that right and should therefore be excluded. This could be true of many different types of statement – for example, a publication containing private information may have the effect of destroying a person’s privacy, but that does not mean Article 10 has no application. Instead, it should mean that the Article 10 right may be outweighed.

This is not the only case where  the application of Article 10 has been limited. In the Jon Gaunt case last summer, the court found that Ofcom’s decision did not interfere with expression rights – in otherwords that Article 10 was not engaged. Really such exclusions of the Article are best kept to the rare extreme cases. My preference is for the court to find that Article 10 is engaged and then consider the necessity of the restriction.  That has been the case in most of the defamation cases that have gone to the European Court of Human Rights. This makes very little difference to the outcome of the case, but is an important point on the court’s methodology.

Categories: Media