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.)

CREDIT: GETTY
Show Hide image

Barb Jungr’s diary: Apart-hotels, scattered families and bringing the Liver Birds back to Liverpool

My Liver Birds reboot, set in the present day with new music and a new story, is coming to life at the Royal Court Theatre.

For the last three years I’ve been writing a musical. Based on Carla Lane and Myra Taylor’s Liver Birds characters Beryl and Sandra, but set in the present day with new music and a new story, it is coming to life at the Royal Court Theatre – in Liverpool, appropriately. Amazingly, the sun shines as the train ambles into Lime Street, where Ken Dodd’s statue has recently been customised with a feather duster tickling stick and some garlands of orange and lime green. Outside the station, composer Mike Lindup and I buy a Big Issue. We have a scene opening Act Two with a Big Issue seller and we are superstitious. We check into our “apart-hotel”. Apart-hotel is a new word and means a hotel room with a kitchen area you will never, ever use.

At the theatre everyone hugs as though their lives depend on it; we are all aware we are heading into a battle the outcome of which is unknown. There will be no more hugging after this point till opening night as stress levels increase day by day. I buy chocolate on the way back as there’s a fridge in my apart-hotel and I ought to use it for something.

Ships in the night

There’s no point in being in Liverpool without running by the river, so I leap up (in geriatric fashion) and head out into the rain. You’d think, since I grew up in the north-west and cannot ever remember experiencing any period of consecutive sunny days here, that I’d have brought a waterproof jacket with me. I didn’t. It springs from optimism. Misplaced in this case, as it happens. I return soaking but with a coconut latte. Every cloud.

We have been in the theatre for seven hours. Everything has been delayed. The cast are amusing themselves by singing old television themes. They have just made short shrift of Bonanza and have moved on to The Magic Roundabout. We may all be going very slightly mad.

As hours dwindle away with nothing being achieved, Mike and I pop to the theatre next door to enjoy someone else’s musical. In this case, Sting’s. It’s wonderfully palate-cleansing and I finally manage to go to sleep with different ear worms about ships and men, rather than our own, about Liverpool and women.

Wood for the trees

This morning “tech” begins (during which every single move of the cast and set, plus lighting, costume, prop and sound cues must be decided and logged on a computer). Problems loom around every piece of scenery. Our smiles and patience wear thin.

By the end of the 12-hour session we know we have the most patient, professional cast in the known cosmos. I, on the other hand, am a lost cause. I fret and eat, nervously, doubting every decision, every line, every lyric. Wondering how easy it would be to start over, in forestry perhaps? There is a drug deal going on across the road in the street outside the hotel. My apart-hotel kitchen remains as new.

First preview

I slept like a log. (All those years of working with Julian Clary make it impossible not to add, “I woke up in the fireplace”.) At the crack of dawn we’re cutting scenes in the Royal Court café like hairdressers on coke. Today is ladies’ day at Aintree, which feels apropos; tonight we open Liver Birds Flying Home, here.

The spirit of Carla Lane, who died in 2016, always dances around our consciousness when we are writing. She was very good to us when we began this project, and she was incredibly important to my teenage self, gazing out for role models across the cobblestones.

I grew up in Rochdale, a first-generation Brit. My parents had come here after the war, and what family we had was scattered to the four winds, some lost for ever and some found much later on, after the Velvet Revolution. I had a coterie of non-related “aunties” who felt sorry for us. Ladies with blue rinses, wearing mothball-smelling fur coats in cold houses with Our Lady of Fátima statues lit by votive candles in every conceivable alcove. To this day, the smell of incense brings it all back. Yet the northern matriarchy is a tough breed and I’m happy to carry some of that legacy with pride.

Seeing the theatre fill with people is terrifying and exciting in equal measure. We’ve had to accept that the finale isn’t in tonight’s show because of lack of technical time. I’m far from thrilled. The show, however, has a life of its own and the actors surf every change with aplomb. The audience cheers, even without the finale. Nonetheless, I slouch home in despair. Is it too late to change my name?

Matinee day

The fire alarm is going off. I know that because I’m awake and it’s 4am. As I stand in reception among the pyjama-clad flotsam and jetsam of the apart-hotel, I suspect I’m not the only one thinking: if only they’d had alarms this annoyingly loud in Grenfell. I don’t go back to sleep. I rewrite the last scene and discuss remaining changes for the morning production meeting with my co-writer, George.

The Saturday afternoon performance (which now includes the finale) receives a standing ovation in the circle. The ratio of women to men in the audience is roughly five to one. In the evening performance it is 50/50, so I’m curious to see how Beryl and Sandra’s story plays to the chaps who’ve been dragged out on a Saturday night with their wives. In the pub after the show a man tells Lesley, the actress playing present-day Beryl, how moved he had been by what he’d seen and heard.

A few years ago I stood behind Miriam Margolyes as we were about to go on stage at the Royal Festival Hall in a Christmas show. She turned to me, saying, “Why do we do this to ourselves?” We agreed: “Because we can’t do anything else!” I suspect forestry is out of the question at this juncture. 

“Liver Birds Flying Home” is at the Royal Court, Liverpool, until 12 May.

Barb Jungr is an English singer, songwriter, composer and writer.

This article first appeared in the 18 April 2018 issue of the New Statesman, Enoch Powell’s revenge