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Friday, 10 June 2011

Injunctions: almost time for a dry martini

Published in Halsbury's Law Exchange here

Fred Goodwin has been back in court (Goodwin v NGN Ltd [2011] All ER (D) 45 (Jun)). The injunction concerning a relationship he had with a former colleague has been varied to permit disclosure of the job description of the lady in question, but not disclosure of her name.

Mr Justice Tugenhadt had this to say about the publicity which the case has received in the past three months:

"On many occasions since 1 March people have commented publicly on the case, criticising the injunction in the pages of newspapers and elsewhere. Much of this reporting contained many factual errors about the case, as I have noted above. Judges read newspapers, but judges cannot vary court orders on the basis of what the public are told by the media. If persons affected by a court order want it to be varied, they must make an application to the court. As appears from the events of 19 May, they can do this quickly and informally, if it is urgent.

English law develops in two ways. First, it is made by Parliament. The Prevention from Harassment Act 1998 and the Human Rights Act 1997 are two privacy statutes referred to in this judgment. Second it is developed by case law, as judges apply the statute to particular cases. At the second stage it is essential that the parties to litigation put their evidence and submissions before the court. It is by weighing up arguments and counter arguments that judges are best able to interpret the law. The circumstances of injunctions applied for out of hours on the telephone are not favourable to a considered development of the law. That is one reason why judges order cases to come back before the court for full consideration on the evidence. That happened on 4 March. But there was no argument then because NGN chose not to argue its case. And other media organisation notified of the injunction chose not to argue the case in court. To the extent that media defendants choose not to submit evidence and argument to the courts, judges will find it difficult to develop the law of privacy to meet the needs of society."

I think that constitutes at least a short stint on the legal naughty step for a few of the media organisations involved.

No doubt the case will be read with interest by all who attended the excellent privacy conference held by Weber Shandwick at Gray’s Inn on 8 June. During the discussion the point was again raised that privacy law may well end up being a castle built on sand, given that the internet may simply render injunctions unenforceable.

I have made this point before and it seems from comments on the UKHR blog that some people see it as a triumphant act of civil disobedience. While I agree that the privacy laws take too little account of freedom of expression – indeed significantly too little – I am not so sure that there are not other options available to those who wish to have them changed which do not involve breaking the law. Also, if it becomes the norm for injunctions to be obliterated by the determined twitterati then it will not be long before real harm is done to a deserving claimant rather than an indulgent miscreant footballer or z-list celebrity; if so the civil disobeyers might remember the old adage about being careful what you wish for.

Having said that, of course, it only takes a few to breach every injunction to render them all futile. If so there is no point in judges, politicians or anyone else arguing about the rule of law; they will have to throw the towel in, rather as American legislators felt compelled to do when ending prohibition.

Legend has it that FDR just happened to have the ingredients for a martini to hand when he signed the 21st amendment, having enjoyed a beer shortly after the Cullen-Harrison Act came into force. I wonder what equivalent might be available to a judge who feels compelled in the future to run up the white flag on judicially-developed privacy laws.

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