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    Wednesday, 7 April 2010

    Inquiry into injunctions in libel and privacy cases

    The Master of the Rolls, Lord Neuberger, has announced the launch of an inquiry into the award of interim injunctions in publication cases. The news release can be found here.

    The inquiry is to focus on both "the issues around the use of injunctions which bind the press", and "so-called ‘super-injunctions’". It is to be undertaken by a highly impressive panel. Much attention has been paid in the press to the latter of these heads. For me, the former is by far the more important, or rather the super-injunctions issue is only one of a range of important matters falling under the broader theme.

    Obviously, the issue being taken to the Strasbourg court regarding prior notification in privacy cases may be one theme. Another was highlighted in the John Terry case: the award of injunctions against particular, as yet unidentifed, but identifable 'persons unknown' which - when coupled with the Spycatcher principle that extends the effective reach of injunctions via contempt of court - can prevent the media from commenting indefinitely without first allowing them the opportunity to gainsay the award. A third, and perhaps the most important, is what to do about the imbalance between the thresholds in privacy vis-a vis defamation actions. Should we equalise up to, or down from the rule in Bonnard v Perryman? If neither, should it be for judges or for claimants to determine whether an action is really about reputation or about privacy (and hence that one standard or the other should apply).

    For me, many of the problems in this area were caused by the drafting of section 12 HRA. This refers to the need to recognise the importance of the Convention right to freedom of expression. By citing the Convention right, and not merely referring, say, to the importance of a free press in a democratic society, the provision encourages the import of arguments based on hypothetical rights into the interim-stage consideration (Article 10, of course, comprises not only Article 10(1), but also Article 10(2)). The court is not at that stage able to determine the existence or relevance of the 'rights' in play. Thus, judges take what might ultimately be determinative decisions affecting actual rights on the basis of next to no pleading of evidence. In the past, judges at the interim stage would do their utmost to avoid relying on the substance of the case when deciding on whether to award injunctions, explicitly on the basis that they could not second-guess what might be presented to them in the full trial. If only it were still so.

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