Super Injunctions

People who use Twitter to breach privacy injunctions may face government legal action.

Attorney General Dominic Grieve said that individuals could be prosecuted for contempt of court for publishing sensitive material. Enforcement was normally a matter for whoever had taken out a privacy order. But Grieve told the BBC he would take action himself if he thought it necessary to uphold the rule of law.

In an interview with Radio 4's Law in Action programme, the attorney general said that individuals who used Twitter or other internet sites to undermine the rule of law could face the consequences of their actions. He was referring to court powers to fine or even imprison people who deliberately break court rulings.

Grieve explained that enforcement of orders made in civil cases was normally a matter for whoever had taken them out. A claimant could go to court and seek to have people punished if they had broken the terms of an injunction.  But when asked if he should bring contempt proceedings himself for breach of a privacy order, Grieve said he would take action if he thought it necessary.

Law in Action is broadcast on BBC Radio 4 on Tuesday 7 June at 1600 BST and Thursday 9 June at 2000 BST, Or via iPlayer or podcast.

Another twitter user has published details of more purported celebrity gagging orders.

A newly created Twitter account posted details of 13 alleged injunctions early yesterday morning, directing users to a website for further detailed information. After attracting more than 500 followers within the first 10 hours of publication, the tweets were removed.

Mark Stephens, a media lawyer, said the courts could instruct the Attorney General or solicitors to begin proceedings, at public expense, to find out who the person behind the breach was. They would then be subject to a contempt of court action: One of the things about this is that it is a cynical snub of the judiciary but a lot of this information has been available for people using the internet for quite some time.

But Sara Mansoori, a media barrister at Matrix chambers, which represents claimants and defendants including some mentioned in the latest alleged Twitter breach, said a judge had recently rebuffed solicitors' calls for the court to start contempt proceedings -- instead telling them they could apply to the Attorney General to intervene: The [breaches] are starting to be a head-on collision with the courts, she said. Courts are implementing laws by Parliament. We have moved away from privacy laws to contempt laws, we are in a very serious situation [but] we have got Parliament, through comments through the Prime Minister saying he is concerned about the courts, and John Hemming [the MP] saying they are unhappy with the way the courts are applying the law.

The author of the latest alleged Twitter breach used the anonymous mask -- employed by groups and individuals seeking to challenge institutions and whistle blow wrongdoings.

Kenneth Clarke, the Justice Secretary, has indicated that a new privacy law will be introduced after warning that the public is not entitled to know about the sex lives of footballers [and politicians?] .

Clarke said there were areas of privacy where Britons could expect to be protected, but added he was uneasy about the use of super-injunctions, which prevent the public from knowing if a gagging order has even been obtained.

Last week, The Daily Telegraph disclosed that more than 80 injunctions have been taken out by well-known people, including Premier League footballers, actors and an MP.

Lord Neuberger, the Master of the Rolls, will this week present an official report to the Government on injunctions, which is expected to recommend more public scrutiny of their use.

Clarke said: 

Plainly, I believe in the freedom of the press and freedom of speech in this country, even when sometimes it is exercised provocatively ...HOWEVER... I also think there are areas of privacy where an individual is entitled to have it protected.

It is probably right to say that Parliament passing a privacy act might well be the best way of resolving it. But we need to get somewhat nearer to a consensus, and one needs to know exactly how we are going to strike this balance.

The first injunction specifically banning the publication of information on Facebook and Twitter was issued yesterday.

The far-reaching order was issued in the Court of Protection in the case of a mother who wants to withdraw life support from her brain-damaged daughter. It prevents the identification of the woman, her relatives and those caring for her.

Legal experts said they had never seen an injunction which specifically barred publication of information on social networking websites.

John Hemming, the Liberal Democrat MP who is campaigning against the excessive use of gagging orders, said: They are like King Canute, the tide will keep coming in no matter what they do. The problem the courts have is Twitter is not registered in the UK and is therefore outside British jurisdiction. What they are saying is unrealistic. This is about life and death and I don't think it's acceptable, there is a real issue with transparency. The Court of Protection operates in a bubble -- it's out of touch with the real world.

A Twitter user named InjuctionSuper has stirred things up with some celebrities who he claims to have obtained super-injunctions to prevent publication of details of their private lives.

The press say that some of these claims are not true but of course they cannot say which these are nor can they confirm any false names.

The use of super injunctions seems ever present in the news these days and seems to be causing much disquiet. A report by a committee set up by the Master of the Rolls - the most senior civil law judge at the Court of Appeal - will report on their use later this month.

BBC legal correspondent Clive Coleman said it will have to grapple with the issue of publication online.

If it doesn't the super or secret-injunction may no longer be an effective tool in the administration of justice, he said.

Media lawyer Charlotte Harris, of Mishcon de Reya, said the stories subject to super-injunctions were quite often cases of nasty blackmail . She said: You should be allowed to end a relationship with somebody, whether you are married or not, without having that person say 'right, I'm going to go to the paper, I'm going to destroy your life, I'm going to tell everybody every intimate thing about you'.

A lawyer who acts for newspapers suggested the viral effect of postings on social media websites could make a mockery of super-injunctions. Niri Shan, head of media law at Taylor Wessing, added: You can get an allegation that is made but before you know... it goes to potentially millions of people. Although people don't take these allegations as seriously as newspapers they certainly have a detrimental effect.

A High Court judge has issued an unprecedented gagging order in an attempt to prevent details of a television star's private life being published, even on the internet.

Mr Justice Eady, who has been at the centre of most recent controversial libel and privacy cases, made the injunction against the world rather than just against national newspapers and broadcasters.

His order seeks to prevent the publication of intimate photographs of a married public figure after a woman tried to sell them for a large sum of money .

The judge said the woman owed the unidentified claimant a duty of confidence and breaching his privacy would damage the health of the man and his family.

His order is intended to cover discussion of the case online as well as in traditional media, despite the difficulties in enforcing it.

The injunction contra mundum is intended to be never-ending and, as its Latin name suggests, applies to the entire world.

It is understood that it is the first time that such an order has been granted in a privacy case.

The ruling takes secrecy laws to a new level, marking a further advance in the steps the courts are prepared to take to protect high-profile figures and to restrict the right to freedom of expression.

Freedom of speech campaigners are claiming victory as the House of Lords is expected to back changes removing anachronistic laws which have criminalised libel for more than 700 years.

The changes, which will be debated as part of the controversial coroners and justice bill, repeal laws dating back to 1275 and allow extremely serious libel and sedition to be prosecuted in criminal courts. The laws have long been regarded as an impediment to freedom of speech and an anomaly in the UK, which has encouraged countries with repressive regimes not to conduct prosecutions for libel.

Agnes Callamard, executive director of campaign group Article 19, said: This will send a very strong and clear signal globally that democracies do not have criminal defamation laws. The government's admission that the law, which has been widely recognised as hampering freedom of press and political dissent, must change comes after increasing concern about clampdowns in other countries, including many states in Europe and the Commonwealth.

These common law offences are anachronistic and their continuing existence, albeit seldom used, has been cited by other countries as justification for the retention of similar laws, which have been actively used to restrict media freedom, a Ministry of Justice spokesperson said: The UK is committed to encouraging other countries to recognise and respect freedom of expression and the media must take the lead in abolishing these out-of-date offences.

There is also a debate about whether to extend changes to the law on blasphemous libel to Northern Ireland, where offensive remarks about the Christian church remain an offence.

There is now a grotesque situation in Ireland, said Liberal Democrat peer Lord Lester QC. In the Republic of Ireland, there has been a rebirth of the offence of blasphemous libel for domestic constitution reasons, and in Northern Ireland we have not yet managed to get rid of it. God no more needs to be protected by criminal law in Northern Ireland than in Great Britain.

The government denied it was considering extending the repeal of blasphemous libel to Northern Ireland. The government believes that the Northern Ireland assembly is the best forum to consider this area of law as it relates to Northern Ireland, the Ministry of Justice said.

An unprecedented attempt by a British oil trading firm to prevent the Guardian reporting parliamentary proceedings collapsed following a spontaneous online campaign to spread the information the paper had been barred from publishing.

Carter-Ruck, the law firm representing Trafigura, was accused of infringing the supremacy of parliament after it insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled on Monday by the Labour MP Paul Farrelly.

Farrelly's question was about the implications for press freedom of an order obtained by Trafigura preventing the Guardian and other media from publishing the contents of a report related to the dumping of toxic waste in Ivory Coast.

The Guardian was prevented from identifying Farrelly, reporting the nature of his question, where the question could be found, which company had sought the gag, or even which order was constraining its coverage.

But overnight numerous users of the social networking site Twitter posted details of Farrelly's question and by this morning the full text had been published on two prominent blogs as well as in the magazine Private Eye.

Carter-Ruck withdrew its gagging attempt by lunchtime, shortly before a 2pm high court hearing at which the Guardian was about to challenge its stance, with the backing of other national newspapers.

MPs from all three major parties condemned the firm's attempt to prevent the reporting of parliamentary proceedings. Farrelly told John Bercow, the Speaker : Yesterday, I understand, Carter-Ruck quite astonishingly warned of legal action if the Guardian reported my question. In view of the seriousness of this, will you accept representations from me over this matter and consider whether Carter-Ruck's behaviour constitutes a potential contempt of parliament?

The Commons question reveals that Trafigura has obtained a hitherto secret injunction, known as a super-injunction , to prevent disclosures about toxic oil waste it arranged to be dumped in west Africa in 2006, making thousands of people ill. Farrelly is asking Jack Straw, the justice secretary, about the implications for press freedom of a high court injunction obtained on 11 September 2009 by Trafigura on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura :

61 N Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura. (293006)

62 N Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, if he will (a) collect and (b) publish statistics on the number of non-reportable injunctions issued by the High Court in each of the last five years. (293012)

63 N Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what mechanisms HM Court Service uses to draw up rosters of duty judges for the purpose of considering time of the essence applications for the issuing of injunctions by the High Court.

How super-injunctions are used to gag investigative reporting

Based on article from guardian.co.uk

Injunctions have become one of the most effective tools powerful individuals and corporations reach for when they want to silence the media. In their simplest form, they prevent news organisations from reporting what happens in court, usually on the basis that doing so could prejudice a trial.

Super-injunctions that prevent news organisations from revealing the identities of those involved in legal disputes, or even reporting the fact that reporting restrictions have been imposed, have emerged recently. They grew out of family cases and then developed further as a result of the privacy law that has come into being in the UK on the back of the right to privacy enshrined in the 1998 Human Rights Act, itself based on the European convention on human rights.

That law has evolved through a series of high court rulings and was used by Max Mosley, the Formula One chief, last year to win damages from the News of the World when it revealed details about his sex life. But this privacy law, welcomed by some as a way of protecting against tabloid intrusion, has further boosted the use of injunctions whose terms of reference are far wider than ever before.

Libel lawyers Carter-Ruck and Schillings have proved adept at persuading judges that injunctions should now be granted on privacy grounds. Some tabloid newspapers are being served with a handful of such orders each week, according to media lawyers. The Guardian 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 the year before.

Update: Injunction Lifted

17th October 2009. Based on article from telegraph.co.uk

A suppressed report which details how an oil company dumped toxic waste in Africa that may cause serious burns has now been released following a parliamentary row over freedom of speech.

The study commissioned just weeks after the incident in West Africa concluded that the dumping would have been illegal under European pollution laws and suggests that the likely cause of the illness reported by locals was the significant release of potentially lethal gas.

The report had been kept secret after Trafigura, one of the world's largest independent oil trading firms, obtained a super injunction that threatened the centuries-old privilege of newspapers to report what MPs can say freely in the Commons.

On Friday night, as the High Court gagging order was lifted, senior figures at Trafigura admitted their approach may have been heavy-handed and insisted it had not been their intention to try to gag Parliament.