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.)

Getty
Show Hide image

There is nothing Donald Trump can do to stop immigration

The story of American immigration has been flowing inexorably in one direction. Even Trump's 24/7 tweeting can't turn the tide.

On 20 January 2009, it seemed that America had crossed the racial Rubicon. The simple fact of a non-white face behind a podium saying “president of the United States” would assure Barack Obama a place in the history books and begin a new chapter in the nation’s saga.

In January 2017, things look very different. Donald Trump won the election for many reasons, but one of them was surely a “whitelash” against a black president. Millions of Americans are not comfortable with “a person of colour” as their head of state and commander-in-chief. Some are racist; others enjoy some racist banter at the bar; many more just draw a colour line in the privacy of their hearts. Trump’s nominations to cabinet posts have included only a few non-whites, and these look like tokenism. His attitude to multiculturalism is paraded on donaldjtrump.com. At the top of his ten-point plan to “make America great again” is the pledge: “Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.”

Will Trump’s whitelash supporters be appeased? I doubt it. Judged against the longue durée of American history, it is Trump who is rowing against the tide – a tide of migration that has gradually eroded the dominance over American life and politics of those of white Anglo-Saxon Protestant (Wasp) stock. Nothing he can do will change that. Not the wall. Not the banning of Islamic immigrants. Not the deportation of “undesirables”. Not even 24/7 tweets. The Donald cannot turn back the Tide.

The story of American immigration has been flowing inexorably in one direction, despite periodic ebbs. The Trump whitelash is the latest of those ebbs. Here are a few snapshots from the past.

In the 1850s, the “Mexicans” of that era were Catholics, fleeing economic depression in Ireland and southern Germany and washing up in big cities such as New York and Chicago. The backlash against them took the form of the American Party, whose members had to be both native-born Protestants and the offspring of Protestant parents. Campaigning against “rum and Romanism”, the American Party demanded strict temperance laws and a ban on Catholics holding public office because of their “thraldom” to the pope. The party had a meteoric rise and fall, quickly eclipsed by the North-South divide over slavery, but anti-papism took time to fade. It was another century before the US elected its first Catholic president: John F Kennedy.

By 1900, the “threat” to American purity was posed by the “New Immigrants” from Italy, the Balkans and the Russian empire who did not look or sound like “Anglo-Saxons” from Britain, Ireland, Germany and Scandinavia. In the peak year of 1907, 1.3 million migrants were admitted, 80 per cent from southern and eastern Europe. “The floodgates are open,” railed one New York newspaper. “The sewer is choked. The scum of immigration is viscerating upon our shores.” It was time to drain the swamp.

The Wasp-dominated Immigration Restriction League campaigned for the “exclusion of elements unsuitable for citizenship or injurious to national character”. Its rhetoric was often overtly racist. In 1896, the Boston economist Francis A Walker blamed creeping globalisation in the form of railroads and steamships for creating what he termed “pipeline immigration”. “So broad and smooth is the channel that there is no reason why every foul and stagnant pool of population in Europe, which no breath of intellectual or industrial life has stirred for ages, should not be decanted upon our soil” – dumping in America those he called “beaten men from beaten races; representing the worst failures in the struggle for existence”.

The wartime crusade for “100 per cent Americanism”, together with the 1919 “Red Scare” against communists and anarchists, finally closed the open door. In 1921 and 1924, Congress slashed migration from Europe to 150,000 a year and imposed quotas based on the proportion of nationalities in the census of 1890, thereby targeting the New Immigrants. Some congressmen made the case in explicitly racist terms, among them Senator Ellison Smith of South Carolina, who declared: “I think we now have sufficient population in our country for us to shut the door and to breed up a pure, unadulterated American citizenship,” formed of “pure Anglo-Saxon stock”. This was the way to make America great.

It was not until 1965 that a new Immigration Act abolished national quotas. At the time, President Lyndon B Johnson played down the law’s significance. It would not, he said, “reshape the structure of our daily lives” but merely correct “a cruel and enduring wrong”. LBJ assumed that the beneficiaries would be people from southern and eastern Europe, the main victims of the 1920s quotas, and he did not anticipate a flood of migrants. Yet in the half-century since 1965, there has been a sustained surge of immigration. Whereas in the 1960s and 1970s, “foreign-born” represented only 5 per cent of the US population, in the 2010 census, the figure was 13 per cent – close to the peak of almost 15 per cent in 1920.

What’s more – and again contrary to Johnson’s expectations – the migratory surge came not from Europe but from Asia and, especially, Latin America. By 2010, 16.3 per cent of the US population of 309 million was identified as Hispanic or Latino, two-thirds of which was Mexican in origin. More than four million Mexicans entered the US legally in the decade from 2000 – equivalent to the total from the whole of Asia. Hence the political appeal of “build a wall”.

African Americans constitute the second largest minority group in the US, at 13 per cent. Most are the descendants of forced migrants in the 17th and 18th centuries: slavery was the “original sin” from which the land of liberty had been conceived. Even after emancipation during the Civil War, blacks remained second-class citizens, enduring segregation in the South and discrimination in jobs, housing and education in the urban North. It was Johnson again who unlocked the door: his Civil Rights and Voting Rights Acts of 1964-65 finally applied federal power to overcome states’ rights.

In doing so, however, LBJ triggered a realignment that pushed much of the previously solid Democratic South into the Republican camp. Richard Nixon’s “Southern strategy” in 1968 signalled a sustained if coded use of the race card by Republicans to woo the silent majority of disenchanted whites – carried on more recently by the Tea Party and Trump.

Hispanics and blacks – now nearly 30 per cent of the US population – have literally changed the face of America. Barack Obama incarnates the new look, being African American but of an exotic sort: the son of a black man from Kenya and a white woman from Kansas; born in Hawaii; raised there and then in Indonesia; and trained at Harvard Law School. As he said in 2008, “I have brothers, sisters, nieces, nephews, uncles and cousins, of every race and every hue, scattered across three continents, and for as long as I live, I will never forget that in no other country on Earth is my story even possible.”

Perhaps in no other country is Trump’s story also possible. Yet it is Obama who has history on his side. The US Census Bureau has projected that whites, who made up two-thirds of the population in 2008, will constitute less than half the total well before 2050 – outnumbered by Hispanics, blacks, Asians and other non-white minority groups with higher birth rates. However, by mid-century, the great divide between white and non-white that has colour-coded US history will probably have become meaningless because of intermarriage. “Obama is 2050,” declared the demographer William H Frey: “Multiracial. Multi-ethnic.”

Governing such a diverse country – even holding it together – will be an immense challenge. The vicious 2016 election prefigured many more culture wars ahead. In the long run, however, Obama – not Trump – is the face of America’s future. Some see that as a sign of degeneration. “Perhaps this is the first instance in which those with their pants up are going to get caught by those with their pants down,” fumed the anti-immigration campaigner John Tanton. But earlier nativists said the same, warning that supposed “lesser breeds” such as “Negroes”, the Irish or Italians were out-breeding their “betters”. Those with greater faith in America’s tradition of painful adaptability might see the country’s growing demographic diversity as signalling not the decline of the Great Republic but another of its epic transformations.

David Reynolds is the author of “America: Empire of Liberty” (Penguin)

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era