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Friday, May 20, 2011 

A new starting point on injunctions.

It would certainly be nice if following today's excellent report by the committee on super-injunctions (PDF), the media finally drop the entirely misleading claim that injunctions which anonymise the claimant(s) are anything approaching the equivalent of the orders sought by Trafigura and John Terry, both of which were subsequently overturned. As they point out, as far as they're aware only two "super-injunctions" have been issued post-Terry, the first of which involving Howard Donald of Take That was set aside on appeal, while the second was only in place for seven days to prevent the alleged blackmailer from being able to get their information out before they could be held in contempt of court for doing so.

As was expected, there's very little in the report to cheer the tabloids hoping for some sort of admission that the current situation is unsustainable and that parliament should legislate to decide where the balance between privacy and freedom of expression should generally lie. Interestingly, the one potential sop to the more concerned sections of the media which has been reported, that super-injunctions were once granted far too readily or too often doesn't itself seem to appear in the report, suggesting this was intimated by Lord Neuberger or Lord Judge at the press conference.

The recommendations the report does make are sensible and should be easy to put in place. It's long been absurd that no proper records have been kept of just how many such injunctions have been issued, making it incredibly difficult to ascertain whether there really has been a massive growth in the number of gagging orders applied for. Collecting the data and issuing an annual report will help to dispel claims that "justice" is increasingly being carried out in secret. Similarly, standardising the procedure to be followed when a "interim non-disclosure order" is sought in the future should help streamline the process, as well as ensure that third parties, almost always media organisations, know about the hearing and have a chance to challenge it from the outset.

The one potential difficulty with the latter is that, as we've seen, certain sections of the media cannot necessarily be trusted to keep the details of the cases secret after they've been gagged, let alone before the injunction has even been issued. This is admittedly not helped when judges are making such difficult borderline decisions, like that involving Fred Goodwin, where the line between the public's right to know he was having an affair at the time of the banking crisis with the possible knock-on effect it may have had on his work and his right to privacy is so narrow and fraught. Justice must be open and seen to be done, but it doesn't have to involve kowtowing to a press that continues to want to impose its own unbelievably hypocritical version of morality on a nation for the sake of their sales. We have long deserved a better debate on all of this, and today's report will hopefully provide a new starting point.

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