Legal News Private Eye (this article appears in paper edition)
Issue No: 1246
Date: 2nd October 2009
LAST month a certain institution obtained a high court injunction to prevent a certain newspaper from publishing a certain document. More than that we cannot say; to do so is fraught with danger.
The battle between press freedom and prior restraint dates back at least to the era of John Wilkes. "Wilkes and Liberty!" was the chant of his followers in the 18th century, and a few years ago it seemed that Liberty was finally winning. If a company or individual tried to injunct a newspaper in advance but the newspaper said that it would justify the story in any subsequent libel action, the tendency of judges was to say "publish and be sued". For a while, pre-emptive high court orders seemed to be going the way of Spangles and the Bay City Rollers.
Not now. Thanks to some aggressive solicitors and timorous judges, prior restraint is now a flourishing industry. If lawyers get a whiff that one of their clients is about to be embarrassed, late in the evening they contact a duty judge - often one who has no experience of libel or media law. And the judge, reached down a phone line while eating his dinner and half-watching Coronation Street, errs on the side of caution. The newspaper may not even be aware of this "hearing without notice", still less have a chance to argue its case.
But that isn't all. The new breed of super-injunction is far more oppressive than the traditional court order under which a newspaper or TV channel is (perhaps temporarily) prevented from publishing a particular allegation. It usually includes an order that "the publication of all information relating to these proceedings or of information describing them or the intended claim is expressly prohibited." (Our italics.) In other words, nobody can report that the order has been granted, or who applied for it. Even the identities of the judge and the newspaper remain secret, and anyone who even hints at them "may be held to be contempt of court and may be imprisoned, fined or have their assets seized".
So it was last year when Andrew Marr won an injunction to stop the media revealing "private information" about him - and to stop them revealing that he'd stopped them. Marr himself was on record arguing against a judge-made privacy law and calling for a public debate on the subject. Any such debate should include some reference to the effect of super-injunctions; yet Marr's, like many others these days, was so draconian that one couldn't mention its existence. Nor were we allowed to know on what grounds it had been given. After a long struggle by Lord Gnome's lawyers, the order was varied so that we could at least say that he'd obtained it, while not repeating the story he wished to suppress.
Something similar happened last year when another TV presenter won a gagging order stopping publication of the fact that a death threat had been received by the broadcaster for whom he works. Even the facts in the previous sentence could not have been reported under the original terms of the order. It was only after more pushing and shoving by Lord Gnome's lawyers that this concession was achieved.
The Guardian's legal correspondent noted last week that "it is impossible to say just how many of these cases there are", since no one can report or discuss them - though the Eye learns that one MP hopes to break the conspiracy of silence, under parliamentary privilege, when the Commons reassembles later this month. But it's clear that they are breeding and sprouting like giant hogweed: "The Guardian, for instance, has been served with at least 12 notices of injunctions that could not be reported so far this year, compared with six in the whole of 2006 and five in 2005."
To which some readers might say: so what? Are our lives impoverished by not being allowed to know that a broadcaster has had a death threat, or wishes to keep his private life private? But of course it isn't only bashful celebs who benefit from this clampdown on free expression. Other public figures and corporations have been quick to exploit the opportunity to tick the box marked "no publicity" and thwart media scrutiny of their conduct.
Eye readers will need no reminding of the super-injunction obtained by Messrs Carter-Fuck, on behalf of former Law Society president Michael Napier, to stop us reporting that he'd been officially censured for breaching conflict of interest rules. "Freedom to report the truth is a precious thing both for the liberty of the individual and for the sake of wider society," the court of appeal said when it found in our favour after a five-month legal tussle. These noble sentiments clearly failed to impress some high court judges who have carried on injuncting like billy-o.
In one recent application for a super-injunction, the QC for the claimants explained to the judge why a newspaper must not only be stopped from publishing its story but also banned from alluding to the gagging order: if it was allowed to report the injunction, it would probably run a piece accusing his clients of trying to muzzle the press.
Which, of course, is precisely what they were doing. The super-injunction was duly granted.