It’s time to re-visit the question of injunctions and how one finds out about them.
No centralised database exists and Ministry of Justice plans for one have been shelved, as first revealed here.
But an anonymised case last month sheds more light on the media system that has grown up around reporting restrictions. The case in the High Court (family division) in November 2010 discusses responsibilities around notifying the media of an injunction (the approved and anonymised transcript can be found on Bailli).
Mr Justice Holman had to decide whether to allow an injunction on all media in a case involving a woman who has had “considerable exposure in the press and media” and care of her two year old child, fictitiously referred to as ‘Jane’ in the High Court case.
The Local Authority sought the restriction to protect ‘Jane’ from the damaging effects of “further media intrusion into her life and upbringing”.
But the judge had to grant the injunction in accordance with Section 12 Human Rights Act 1998, regarding freedom of expression.
However, the local authority had only served CopyDirect, the Press Association alert service, with notice of the injunction.
But what of media organisations which do not subscribe to CopyDirect? The judge states:
…”the local authority have not in any way alerted or notified any of those national media organisations, such as Guardian Newspapers Ltd or Telegraph Group Ltd, which choose not to subscribe to CopyDirect, nor have they served any local newspaper or media organisations, none of which subscribe to CopyDirect.”
The counsel for the Local Authority wished the injunction to extend “in wider terms against the media generally”. The judge decided that (my emphasis in bold):
…It is, frankly, impossible for me to be satisfied, as section 12(2)(a) of the Act requires, that the local authority have “taken all practicable steps to notify” any media organisations other than those which subscribe to CopyDirect; and impossible for me to be satisfied that there have arisen today some “compelling reasons” within the meaning of section 12(2)(b) why other media organisations should not be notified, and this is not a case in which an application is made very urgently this afternoon in the knowledge that there is some media organisation about to go to press later today.
Therefore the judge proposed that: “This order binds all persons and all companies… who know that the order has been made who subscribe, or whose employing company or organisation subscribes, to the PA CopyDirect service.”
Mr Justice Holman continues:
“I stress, of course, that no individual media organisation will be bound by any order at all unless and until that individual organisation has been properly served, in accordance with the provisions of paragraph 7 of the proposed order, with the order itself. It is not possible to effect service of the order (in contradistinction to the application) upon CopyDirect.”
The details of the order are further discussed in the full decision.
The judge said he did not wish to restrict publication in relation generally to the mother or the father, but that: “It would be potentially highly damaging to Jane, and indeed intolerable, if there was press or media presence at, or in the vicinity of, any place where (as they do) they were having contact with her.”
He could not see any legitimate public interest in further pictures of ‘Jane’: …”in my view, this child should be completely protected from any further attempts by, or on behalf of, the media to take photographs of her.”
The judge’s decision states:
For those reasons, I propose to restrain any publication or broadcasting of any picture, photograph or image of, or including, Jane which is not already in the public domain prior to the making of this order today.
Mike Dodd, editor of the PA Media Lawyer service, sees Holman’s decision to restrict an injunction to only those notified in advance as a “boost for the right to freedom of expression”.
In a commentary earlier this week (available by subscription only) he describes the system for notifying the PA’s Injunction Alert Service run by its CopyDirect division, as laid out in a Practice Direction issued by Dame Elizabeth Butler-Sloss in 2005:
This was established following discussions about the Practice Direction between media organisations and court authorities, and is paid for by the subscribing media organisations.
Its aim is to help applicants for injunctions in the Family Division to notify the national media of their intentions and to supply the relevant documents so that they can make an informed decision on whether they wish to resist such applications.
Once supplied to the service, the material is forwarded to the legal departments at all the subscribing national news organisations.
Applicants are expected to make their own, separate, arrangements to notify non-subscribing news groups.
Unfortunately, while many applicants follow the rules and give notice of an application, many others, including local councils, fail to do so.
Citing various examples, Dodd says: “Too few local authorities and specialist family practitioners, solicitors and barristers, seem to be aware of the requirements of section 12, or even of the existence of the Press Association Injunction Alert Service – all the relevant information is available on the website at http://www.medialawyer.press.net/courtapplications.“
Meeja Law Comment: It seems we have a very piecemeal system, which, in my view, lacks clarity and logic – especially in an age of digital communication. Whilst a central mechanism for disseminating information exists, PA CopyDirect, not every national media organisation subscribes to it, let alone every local media publication. (The position for bloggers, not recognised as professional media, is even more unclear).
Mr Justice Holman’s decision is certainly encouraging for freedom of expression, but it must be balanced with the protection of vulnerable children from media intrusion. Surely there must be a more efficient and better way to manage injunctions, especially when it concerns the protection of a child?