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Tuesday, 31 May 2011

Injunction-breakers v privacy-brokers: the fight for free speech

Published in Halsbury's Law Exchange here.

When writing about superinjunctions in April, I offered the observation (for which I claim no originality or great insight) that the internet might well render the law of privacy unenforceable. Needless to say, something close to that situation has since come to pass, and there has been much discussion on the legal blogosphere on the subject.

I must admit to some mixed feelings about the injunction saga. Deliberately flouting court orders, whether it be by private citizens using the internet or by attention-seeking MPs invoking Parliamentary privilege, is seriously damaging to the rule of law. Spreading rumours about injunctions without even knowing if they are true or not (or perhaps deliberately in the knowledge that they are false) is also reprehensible behaviour by any measure.

In a country where political speech at least remains free, the internet-wielding private citizens ought to be campaigning for a change in the law if they happen to disagree with it, not deliberately undermining it. MPs as lawmakers have even less excuse.

One argument doing the rounds of the popular press has it that privacy laws are exclusively judge-made, and are somehow less defensible as a result.

In response I would say, first, that present privacy laws derive from art 8 of the European Convention on Human Rights which, needless to say, was brought into UK law by an Act of Parliament, so all the law-making has been done against that background. Moreover, Strasbourg was already some way down the line of current art 8 jurisprudence, so it is fair to say we were warned. But whether the present law of privacy is judge-made or not is beside the point: the law is still the law, and if it is deliberately flouted via the internet or Parliamentary privilege the rule of law is undermined.

Secondly, even if Parliament were to pass legislation on the subject, it would have the same enforcement problems as the courts for the same reasons – it would be largely unenforceable against overseas bloggers and tweeters, and MPs relying on art 9 of the 1689 Bill of Rights (although presumably the latter might be a little more restrained in their use of Parliamentary privilege if they thought that privacy laws carried Parliament’s approbation). Moreover, in passing any legislation Parliament would be constrained to act within the margin of appreciation afforded by Strasbourg.

Leaving aside the practical difficulties, it does seem to me that in balancing privacy with freedom of expression too much weight has been given to the former. I do think it would be wrong to allow publication of photographs or video footage of someone’s private activities, and for that reason the courts reached the right decision in the Mosley case. But I remain unconvinced that that degree of privacy should extend to suppress a textual report of the fact of someone committing adultery.

Injunctions are serious matters: any breach may result in a sentence of imprisonment. The usual ground advanced in their support is that children of the injunction-seeker should be protected. Yet murderers and rapists do not qualify for name suppression even if they have children, so the argument that adulterers should is on flimsy grounds. The criminal law is the state’s ultimate weapon against its own citizens and it should be used sparingly. Tell-tales and gossip-mongers are generally not admirable people but that should not render them criminals, which is what injunction-breakers will become. Moreover, the courts are a scarce, expensive and overworked public resource and there are many more deserving litigants waiting to have their cases heard than embarrassed footballers and other b-list celebrities.

I suspect self regulation, for the mainstream media and for news and legal bloggers who wish to be taken seriously, will be more effective. The courts should be used to award damages against those who impinge privacy in cases such as Mosley’s. The distinction between breaches which do warrant the law’s intervention (such as Mosley’s) and those which do not (straightforward kiss and tell tittle-tattle) would have to be worked out on a case-by-case basis – even if Parliament did legislate on the subject, for then there would be litigation on the interpretation of that legislation. A starting point might be to consider the US law on the subject, whereby those deemed to be public figures rarely stand a chance of suppressing the freedom of the press.

Those who do not like what has been said about them should either sue for defamation – if the statement wasn’t true – or maintain what used to be called a dignified silence. Or, dare one even suggest it, not give the tabloids ammunition in the first place …

Coda: for further reading this morning’s roundup on the UKHR Blog is a good place to start.


  1. Two issues here. One is whether superinjunctions are justified. The other is whether it is acceptable for those who disagree with them to breach them. Regarding the first, the common-sense view would be that both privacy with freedom of speech are important and we have to judge on a case-by-case basis which way to go when, for example, a newspaper wants to print a story about a footballer’s extra-marital affair which the footballer doesn’t want printed. Such a view is theoretically unsatisfactory and doesn’t lay down clear rules for people to act by, so we need a more principled answer. Here are some possibilities:
    The US view - this has a lot going for it. As I understand it, it says the media shouldn’t be prevented from printing anything true if it is about a public figure.
    1. A more extreme view - that media shouldn’t be prevented from saying anything true, whether it’s about a public figure or someone like you or I. This also has a lot going for it. Sure, I wouldn’t want a newspaper to contain my secrets or photos of me in private but then I doubt any newspaper would be interested in them.
    2. Actually there is an even more extreme view - where media wouldn’t even be prevented from printing anything, true or not. Maybe they would have to allow a right of reply.
    3. The UK view is more conservative than the US view - the injunction was preventing a true story about a public figure. What was the judge’s rationale? That private matters should be kept private? That would seem to rely on a public-private distinction which is hard to maintain. Would a politician’s sex-life be private or is it relevant for those who might count that information as relevant to determining the politician’s character.

    The second issue is about whether MPs and internet users should respect the injunction. I don’t agree that flouting court orders is ‘seriously damaging to the rule of law’. There’s a long tradition of civil disobedience and it has played an important role in bringing about legal and social changes. If the legal ruling is a bad one, why respect it? Disobeying it is hardly going to result in anarchy on the streets. There have been many attempts over the centuries to demonstrate an obligation to obey the law, the strongest case coming from Thomas Hobbes who argued in the seventeenth century that there is a social contract to to give up one’s own judgements about right and wrong actions and follow government’s judgements instead, so that government can provide us with civil society and keep us out of the anarchy of the state of nature. One of the main objections to this is the difficulty of abdicating one’s moral judgement in this way. We can do it but given how badly governments sometimes behave, I’m not sure we should.

  2. As I said, I lean more towards the US view of favouring free speech. But it is hard to say that free speech should extend to a secret film of someone's private activities which is then sold to the newspaper - most people would be pretty violated by such an occurrence. I think it is distinguishable from the situation where, say, girl A says she had an affair with footballer B, though of course the problem is the myriad grey areas that will always exist even if Parliament or the court tries to lay down principles to be applied in each case.

    As to the civil disobedience point, of course it is a long standing moral principle, from at least the time of Socrates. One of the great state trials in English history concerned the Whig prosecution of the Tory preacher Dr Sacheverall in the early C18, for daring to say that there could never be a right to resist the law! (The reason was that, if there was never ever a right of civil disobedience, then the Glorious Revolution of 1688 had to have been immoral and illegal rather than the just overthrow of a tyrannous King.) But it is hard to say that civil disobedience of the privacy laws are of a piece with Gandhi or Mandela or Socrates.

    On the other hand, I don't agree particularly with the state of privacy laws and it does seem that the courts will have to bow to the inevitable if their injunctions are continuously undermined.