A new report by the master of the rolls's superinjunction committee, formed in the wake of widespread concern over the Trafigura and John Terry injunctions, is a welcome response to recent media hysteria.
The committee was interested in both superinjunctions in their original form – before people began lumping them together with any injunction that has initialled claimants – and anonymised privacy injunctions, but not court of protection cases or family proceedings.
As the editor-in-chief of the Guardian, Alan Rusbridger, carefully emphasised in his recent Anthony Sampson lecture, there is a distinction between injunctions so severe they cannot be reported in any detail at all (superinjunctions), and the sort where the claimants' identities are kept secret but the case judgment made public (anonymised injunctions). The report has also defined superinjunctions in these terms.
It was correctly predicted by the Inforrm blog and the Guardian's Owen Bowcott that the committee would deal with procedural rather than substantive law and policy matters. But its findings and recommendations should not be underestimated. The master of the rolls, Lord Neuberger, correctly delegated the substantive issues to appropriate quarters: parliament and the courts.
Keeping a level head in response to screams about superinjunctions does not mean there is no need to scrutinise the secrecy and anonymity of privacy cases. The public and the media need to know what type of cases are taking place in the courts to assure everyone that judges are properly upholding the right to freedom of expression and the principle of open justice.
In that sense, the hysteria of recent months was unsurprising. People simply didn't know the extent of the superinjunction problem. A centralised secure database, as now recommended by the committee, would help assuage those concerns.
Of course, justice sometimes requires a degree of secrecy, but the media must know why. It was reassuring, then, to hear Neuberger say: "… when it [secrecy] is ordered, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment".
The media and public need to know what the orders are – as was forbidden in the case of Trafigura – and the committee's recommendations emphasise the important balance between freedom of expression and open justice, and an individual's right to confidentiality and privacy.
We can rest assured, for example, that the committee is only aware of two superinjunctions, whose existence could not be reported, issued post-Terry. One was set aside on appeal (Ntuli v Donald [2010] EWCA Civ 1276); the other has a public judgement (DFT v TFD [2010] EWHC 2335 (QB)). "As far as the committee is aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping off, short-term basis," it reported.
Issues outside the remit of the report include the call for media organisations to comply with a pre-notification requirement (as fought for by Max Mosley), and the Bonnard v Perryman rule, which makes it easier to prevent publication with a privacy injunction than a libel injunction.
To deal with these, and other concerns about privacy, the substantive law must be considered – and that's a job for parliament and the courts.
Judith Townend is a freelance journalist and researcher. Her doctoral study at the Centre for Law, Justice and Journalism, City University London, examines legal restraints on the media.
