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

Murdoch, BSkyB and the public interest test

November 8, 2010 Leave a comment

See my article, on the News Corp bid for BSkyB, on the Australian website On Line Opinion here.

Categories: Media

A change – after much foot dragging

November 2, 2010 2 comments

Some prisoners are finally to get the right to vote. The only part of this that worries me is that the government are only agreeing to make the change reluctantly. David Cameron is said to be “exasperated and furious” at being forced to extend the right to vote. This highlights a shameful episode in which the government has, for a number of years, done everything possible to avoid protecting this aspect of the right to vote as required under the European Convention.

At present the blanket ban on all prisoners voting makes no distinction as to the seriousness of the offence or whether the punitive part of the sentence has been served. Two people may be convicted of the same offence, but one person may be sent to prison (and lose the right to vote) and the other may not (and not lose that right). The choice of punishment may reflect various factors and does not necessarily  indicate whether the loss of the political right is appropriate.

The impetus for reform is not just from the European Court of Human Rights in Hirst. The Scottish court in Smith v Scott found that the law violated fundamental rights and issued a declaration of incompatibility under s.4 of the Human Rights Act. While a declaration will normally prompt a change in the law, in this case it did not – which is unsurprising given that prisoners’ rights is a politically unpopular cause.

The British system for protecting fundamental rights relies on the political branches taking responsibility (and not simply leaving these matters to the courts), and this means sometimes making unpopular decisions. For this reason, I hope the Opposition does not seek to score cheap political points from this issue.

Categories: Election

The Freedom of Information Act – more regrets

October 25, 2010 Leave a comment

Tony Blair’s description of the Freedom of Information Act as a ‘mistake’ received much media coverage, and is now followed by Jonathan Powell in his book, The New Machiavelli. On pages 197-198, Blair’s former Chief of Staff makes several arguments criticising the legislation.

The first is that publishing internal advice will make civil servants more cautious when issuing advice. He also gives examples from other jurisdictions, where civil servants will not write down anything sensitive for fear that it will be released. There is something to this, but this should be addressed not by exempting all advice to ministers, but by striking a balance – as is currently the practice under the Act (looking at the importance of the issue, when the decision was made, etc). Of course, disclosure does erode the tradition of ministerial responsibility, but surely that was an accepted part of greater transparency.

The second is concerned with the costs of the FoI Act and the extra staff needed to deal with the requests. Yes, of course it costs more than not having an FoI Act, but I do not agree that this is simply ‘wasteful’ bureaucracy.

Powell’s third criticism is that the Information Commissioner has mixed roles: he is responsible for promoting transparency and also has an adjudicatory function deciding when information should be released. Powell argues that this means the Commissioner will normally favour ‘extending the boundaries’ of what should be released when hearing cases. Not sure this is fair. The Information Commissioner also has responsibility for protecting privacy and personal data, so it should not be assumed that his brief will always make him pro-disclosure. A mixture of policy and adjudicatory roles can also be found in other regulatory bodies. For example, Ofcom has a role in drawing up broadcasting standards while also acting as adjudicator. In any event, those unhappy with a decision from the Information Commissioner can always appeal to the Tribunal – that body does not have a policy role and has on many occasions taken a more pro-disclosure stance than the Commissioner.

Finally, Powell argues that while the Act was designed for use by citizens to access information held by government, it has largely been used by journalists to harass rather than illuminate. There is something in this criticism. The FoI Act can be used to get hold of an isolated piece of information or statistic, and then run a story of the ‘you couldn’t make it up’ variety without any background context or explanation.

One issue is with requests that are purely for entertainment and say little about the workings of government. The complaint is not new. In 2007, critics complained that people were using the Freedom of Information Act to find out how much the Foreign Office spent on Ferrero Roche chocolates or how many people were reported to have had sex with sheep in Wales. Requesting trivial information is not a good use of public funds, but how common is this really? In any event, the public authority do not have to reply to vexatious requests.

More common are stories on public spending. A couple of days ago the Express, using a FoI request, reported that the Forestry Commission spent £8,000 on contractors watering plants at its HQ. Similarly, other stories report the amount that is spent by the NHS on consultants. These statistics are not contained as part of a broader investigation by the newspaper, the sum spent is the story. The story does not provide much additional information, like why the authority thought it was a good idea to use the resources in this way or what proportion of the authority’s budget was spent on plants or consultants. Instead the story is just giving you the bottom-line sum. Few people are going to approve of a public authority spending money on something that does not appear to be part of its core remit. As a result, the FoI Act can provide a fairly quick and cheap route to stirring up public outrage.

Does this mean the FoI Act was a mistake? Absolutely not. While you may not like the way the information is being used, that is not a reason to deprive the people of the information. Of course, we may want the media to behave more responsibly in its analysis, but I don’t think that can be enforced by keeping people ignorant. There are also many important stories that are published due to the FoI Act – so maybe the other stories are the price we pay.

I also do not agree with the line of argument that the FoI was for individuals to use and not journalists. The critics say the FoI is used to boost newspaper profits. In other words, the cost of administering the FoI is a kind of subsidy to the media, as the public authority carries out (and pays for) research that is then used by the media. The response to the criticism is that there are already some controls on the costs of requests. The cost is also less than the sums spent by the government on its own press relations operations, which feed positive stories to the media. It is also no surprise that the media use the Act more (and the experience overseas would have told the government that before the Act was passed). Most people do not carry out their own investigations into the workings of government and, instead, rely on the mass media as the source of information. The use of FoI is necessary to the media in performing its central functions in holding government to account.

The Freedom of Information Act has some uses and consequences that are good and others that are bad. No system can be absolute and some guards must be in place to protect privacy, for example. But I don’t think this is a reason to conclude the Act was a mistake.

Twitter case and free speech

October 5, 2010 Leave a comment

See my article for the Guardian’s Comment is Free here

Categories: Uncategorized

Jurors, Google and the risk of prejudice

September 29, 2010 Leave a comment

Writing in the Guardian, Afua Hirsch discusses the dangers of jurors searching online for details about a trial. In particular, she worries that detail a defendant posts on Facebook could taint a juror’s view and potentially prejudice a trial. Jurors can encounter this information not just by searching for it. In high-profile cases, the mainstream media often digs up and publishes old social network posts made by a suspect. While judges give directions to a jury not to look for information, Hirsch concludes ‘warnings from judges are just not cutting it.’

On this point, I think Hirsch is right. Earlier this year, the Ministry of Justice published the results of a study, Are Juries Fair? The report, based on a survey of 62 cases and 668 jurors, found that in high-profile cases 12% of jurors looked online for information about their case. 26% of jurors in high-profile cases said they saw information about their case online (even though they had not searched for it). This is just one study based on a sample of cases and you may wonder whether the respondents in the survey were completely frank about their searching habits.

While jurors are told to ignore information obtained outside the court room, it is not clear how effective those warnings are. Even if a juror tries to follow this instruction, I find it hard to believe a juror can simply put aside information acquired on a person’s past or character. All this, however, stands in contrast to the faith in the jury so frequently expressed by the judiciary. The trouble is, the problem does not come with an obvious solution, save for a hope that clearer and more specific warnings by judges will be effective.

Categories: Media