The recommended procedure and law around privacy injunctions “isn’t quite fit for purpose” according to Gideon Benaim, a partner at Michael Simkins LLP (formerly of Schillings), writing in the Guardian today. Comments seem to be closed on the piece so I’m responding with a couple of questions/points in this post.
In his view, Lord Neuberger’s 2011 report on ‘super-injunctions’, while “well-intentioned”, “legitimises the fuelling of publicity which in turn creates irreversible intrusion and mischief”.
“For allowing the publication of the fact that an injunction has been granted, together with basic facts about the specific case (facts which often go well beyond what can really be described as basic) creates publicity and hysteria about who the person seeking the injunction is, and also encourages online speculation fuelled by those in the know (probably started by mischievous journalists). Not to mention that all of these things actually increase the costs massively.”
Benaim suggests … “restricting publication of the fact of an injunction where a court has found there to be no, or insufficient, public interest to justify intrusion into a private life”, which he considers “a pretty reasonable prospect”.
This proposition raises important questions around open justice and transparency. When Lord Neuberger’s committee report came out in May 2011, I argued that it cut through the “super injunction hysteria” and its recommendations would provide a balanced way of monitoring the number and type of injunctions being granted, without transgressing an individual’s legitimate claim to Article 8 rights, as decided by a judge.
I don’t think it was a satisfactory state of affairs that, at the press conference announcing the report’s release, Lord Neuberger was unable to tell journalists precisely how many so-called super injunctions and anonymised privacy injunctions had been granted since 2000. According to the report, specific records were not “kept in respect of such matters”. The committee’s recommendations sought to prevent that type of data blackout occurring again.
As quoted above, Benaim is concerned that publishing facts about the specific case “creates publicity and hysteria about who the person seeking the injunction is”… “and also encourages online speculation…”
My question, then, is how he proposes to track injunctions, if at all? How does he propose that data is collected around the number and type of injunctions granted? Who should have access to the records?
If we were to lose our newfound access to regular statistics and published anonymised judgments and return to the unmonitored secrecy of yore, how would we prevent a repeat of events that led up to the committee’s creation in April 2010? According to the Judiciary, it was formed as a response to “growing public concerns about the use and effect of what were termed super-injunctions and the impact they were having on open justice”. Would we not be back at square one?
Benaim is right that there has been some tabloid manoeuvring on this issue and fuelling of the fire (and in other quarters too), but the report indicated a wider public concern about open justice, which needed to be addressed.
Payments for private information
Finally, there is one really interesting point he makes, which seems worth flagging up:
“Also, isn’t there something particularly wrong and distasteful about kiss-and-tells and similar types of arrangement with the tabloids? By this I mean the payment of money to someone (usually an unknown) for a story about something private which is only of interest to the tabloid because it relates to a well-known person. This, I argue, should rarely, unless there is a particularly strong and legitimate public interest argument, be afforded much weight by the courts.”
It strikes me that is one issue that needs further attention: how should financial transactions of private information be managed in a new system of regulation? If such transactions were subject to regulation, what implication would there be for the public interest, freedom of expression and an individual’s right to privacy?