Thinking clearly about superinjunctions

Do not be carried away by the current media frenzy.

Yesterday evening there appeared on Twitter an account which purported to disclose the details of various supposed "superinjunctions".

None of the apparent revelations seemed to be in the public interest. Instead, it seemed a depressing publication of personal information, which, whether true or false, was a needless intrusion into the private lives of those involved. One basis of a civilised and liberal society is that information that only concerns the private lives of those involved should remain privy to them, unless there is a public interest to the contrary. Everyone needs a private space, even celebrities and politicians.

At closer look, some of the examples were, in fact, based on quite normal injunctions which had been reported in the media; a couple of examples were based on current rumours and educated guesswork; and a couple were so unlikely that they appeared to be fabricated. Overall, it looked like a hoax account insofar as it claimed to be giving out reliable information on "superinjunctions". The only slightly interesting point was the number of media and legal twitterers who were suddenly looking at the account not really knowing what could -- and should -- be done with these trivial and personal allegations. Such observers were right to be concerned: one false move could well have been a contempt of court or a fresh defamatory publication.

The background to all this is that the word "superinjunction" now has a special and exciting quality. This is strange as, in one important way, "superinjunctions" do not really exist. What the High Court can offer are injunctions: court orders directed at parties so as to prevent certain specified courses of action. A "superinjunction" is just a normal injunction but with strict terms, and it is not an entirely new legal creature. Strict injunctions are as old as the equitable jurisdiction of the High Court.

Not even in colloquial terms is there an agreed description of what is a "superinjunction". The best practical definition is that it is an injunction, the terms of which mean that disclosure to a third party that the injunction even exists would itself be a breach of the injunction. Sometimes such court orders are entirely proper. In the criminal and human rights context, the analogous "Mary Bell" orders prevent disclosure of details which would point to the identity of a former criminal. In the civil context, such strict injunctions are granted in rare cases where the type of legal right being protected -- confidentiality, legal professional privilege, private information -- is such that the right would itself be lost if the existence of the injunction was revealed.

Unless the contention is that the courts should never protect such legal rights -- thus effectively rendering the law protecting confidentiality, legal professional privilege, private information as having no practical effect in certain rare situations -- then there is a role for so-called "superinjunctions", though they should only be granted sparingly and always for good reason.

It should also be noted that "superinjunctions" are exceptional in libel claims, and when one hears a pundit casually conflate the two issues -- for example, the notorious Trafigura superinjunction was not granted in respect of libel -- then it is usually a sign that the pundit does not actually know what he or she is talking about. Similarly, injunctions where the names of one or more of the parties are simply anonymised are not "superinjunctions" as the fact of the injunction is usually public.

So why is there this current frenzy about "superinjunctions"? Why is the tabloid media desperately seeking to discredit "superinjunctions" in theory and, as far as they dare, in practice? The reason is partly that such court orders undermine a certain unattractive approach to reporting celebrity news. It is also partly because court orders actually work. Unlike with "phone-tapping" and data privacy laws, robust editors and their lawyers cannot blithely disregard the risk of the legal consequences of a breach of an injunction.

But one suspects the primary reason why the tabloid media are now so anxious to undermine the whole notion of "superinjunctions" is that the European Court of Human Rights is expected to hand down its decision in the Mosley case later this week.

The issue in this potentially highly significant case is whether the UK should make it a requirement that before the mainstream media can irrecoverably publish private information, they should first notify the individuals concerned. This sensible and fair approach is deeply opposed by the mainstream media, as the alerted individuals may well immediately apply to the High Court for an injunction to protect their right against private and personal information being wrongly publicised. However, if such injunctions can be discredited in the "Court of Public Opinion" then it is less likely that any adverse judgment in the Mosley case will gain traction.

Ultimately, personal privacy is as much a basic human right as freedom of expression. Neither has an inherent priority over the other. The courts rightly do not presume in favour of one or against the other when the two appear to conflict. "Superinjunctions" are granted in individual cases where the rights of the individuals involved appear to the Courts to warrant an interference with free speech. One hopes that they are not granted too lightly and that, if so, there can be reform as to how the Courts approach such applications.

But we must be wary of the tabloid media seeking to entice us into a frenzy or latter day witch-craze against "superinjunctions" being granted at all. The tabloid media had no proper regard for the basic laws protecting human privacy in the phone-hacking scandal, and so one should be sceptical of their protestations now.

 

David Allen Green is a media lawyer and legal correspondent to the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Debunking Boris Johnson's claim that energy bills will be lower if we leave the EU

Why the Brexiteers' energy policy is less power to the people and more electric shock.

Boris Johnson and Michael Gove have promised that they will end VAT on domestic energy bills if the country votes to leave in the EU referendum. This would save Britain £2bn, or "over £60" per household, they claimed in The Sun this morning.

They are right that this is not something that could be done without leaving the Union. But is such a promise responsible? Might Brexit in fact cost us much more in increased energy bills than an end to VAT could ever hope to save? Quite probably.

Let’s do the maths...

In 2014, the latest year for which figures are available, the UK imported 46 per cent of our total energy supply. Over 20 other countries helped us keep our lights on, from Russian coal to Norwegian gas. And according to Energy Secretary Amber Rudd, this trend is only set to continue (regardless of the potential for domestic fracking), thanks to our declining reserves of North Sea gas and oil.


Click to enlarge.

The reliance on imports makes the UK highly vulnerable to fluctuations in the value of the pound: the lower its value, the more we have to pay for anything we import. This is a situation that could spell disaster in the case of a Brexit, with the Treasury estimating that a vote to leave could cause the pound to fall by 12 per cent.

So what does this mean for our energy bills? According to December’s figures from the Office of National Statistics, the average UK household spends £25.80 a week on gas, electricity and other fuels, which adds up to £35.7bn a year across the UK. And if roughly 45 per cent (£16.4bn) of that amount is based on imports, then a devaluation of the pound could cause their cost to rise 12 per cent – to £18.4bn.

This would represent a 5.6 per cent increase in our total spending on domestic energy, bringing the annual cost up to £37.7bn, and resulting in a £75 a year rise per average household. That’s £11 more than the Brexiteers have promised removing VAT would reduce bills by. 

This is a rough estimate – and adjustments would have to be made to account for the varying exchange rates of the countries we trade with, as well as the proportion of the energy imports that are allocated to domestic use – but it makes a start at holding Johnson and Gove’s latest figures to account.

Here are five other ways in which leaving the EU could risk soaring energy prices:

We would have less control over EU energy policy

A new report from Chatham House argues that the deeply integrated nature of the UK’s energy system means that we couldn’t simply switch-off the  relationship with the EU. “It would be neither possible nor desirable to ‘unplug’ the UK from Europe’s energy networks,” they argue. “A degree of continued adherence to EU market, environmental and governance rules would be inevitable.”

Exclusion from Europe’s Internal Energy Market could have a long-term negative impact

Secretary of State for Energy and Climate Change Amber Rudd said that a Brexit was likely to produce an “electric shock” for UK energy customers – with costs spiralling upwards “by at least half a billion pounds a year”. This claim was based on Vivid Economic’s report for the National Grid, which warned that if Britain was excluded from the IEM, the potential impact “could be up to £500m per year by the early 2020s”.

Brexit could make our energy supply less secure

Rudd has also stressed  the risks to energy security that a vote to Leave could entail. In a speech made last Thursday, she pointed her finger particularly in the direction of Vladamir Putin and his ability to bloc gas supplies to the UK: “As a bloc of 500 million people we have the power to force Putin’s hand. We can coordinate our response to a crisis.”

It could also choke investment into British energy infrastructure

£45bn was invested in Britain’s energy system from elsewhere in the EU in 2014. But the German industrial conglomerate Siemens, who makes hundreds of the turbines used the UK’s offshore windfarms, has warned that Brexit “could make the UK a less attractive place to do business”.

Petrol costs would also rise

The AA has warned that leaving the EU could cause petrol prices to rise by as much 19p a litre. That’s an extra £10 every time you fill up the family car. More cautious estimates, such as that from the RAC, still see pump prices rising by £2 per tank.

The EU is an invaluable ally in the fight against Climate Change

At a speech at a solar farm in Lincolnshire last Friday, Jeremy Corbyn argued that the need for co-orinated energy policy is now greater than ever “Climate change is one of the greatest fights of our generation and, at a time when the Government has scrapped funding for green projects, it is vital that we remain in the EU so we can keep accessing valuable funding streams to protect our environment.”

Corbyn’s statement builds upon those made by Green Party MEP, Keith Taylor, whose consultations with research groups have stressed the importance of maintaining the EU’s energy efficiency directive: “Outside the EU, the government’s zeal for deregulation will put a kibosh on the progress made on energy efficiency in Britain.”

India Bourke is the New Statesman's editorial assistant.