Superinjunctions should be for exceptional cases only, judge to say

Lord Neuberger’s review expected to warn spate of restrictive privacy orders pose grave threat to tradition of open justice Superinjunctions should only be granted in exceptional circumstances because of the threat they pose to open justice, a report by one of Britain’s most senior judges is expected to warn on Friday. Pre-notification ought to be given to third parties, such as the media, of court hearings where celebrities or others are applying for restrictive orders protecting their anonymity, the study headed by the master of the rolls, Lord Neuberger, is also expected to recommend. The proposals arrive as one of the most controversial privacy injunctions – which prevented coverage of Sir Fred Goodwin’s private life – was unexpectedly part-lifted . The decision followed a question in the House of Lords by the Liberal Democrat peer Lord Stoneham of Droxford, who said: “Every taxpayer has a direct public interest in the events leading up to the collapse of Royal Bank of Scotland, so how can it be right for a superinjunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague?” Whether Neuberger’s report will add to the argument that the government needs to pass a privacy law is not clear. The culture secretary, Jeremy Hunt, has ruled it out following a meeting with the justice secretary, Ken Clarke. Hunt said: “I don’t believe a privacy law is the way forward. We’re not minded to have a new privacy law but we’re not ruling out the need for legislative changes.” His remarks appeared in contrast to Clarke’s comments in the Commons on Tuesday when he implied that a privacy law might be the best way forward. The long-awaited survey of superinjunctions and privacy orders, which runs to around 100 pages, will provide the government with clearer evidence about the need for a privacy law. Established last year in the wake of the Trafigura affair and the row over the England footballer John Terry’s private life, the Neuberger committee of experts was asked to examine “the use of injunctions which bind the press and so-called ‘superinjunctions’”. There will be no proposals for changing the law, but calls for procedural changes in how courts process applications. The report is believed to suggest that a standard form of privacy injunction order should be drafted, providing a more rigorous and standardised approach to the process of granting gagging orders. There has already been a move away from superinjunctions – which prohibit even mention of the injunction’s existence – towards slightly less secretive orders that protect anonymity. The committee – which includes leading media lawyers, solicitors specialising in privacy issues and judges – is understood to welcome the fact that fewer superinjunctions have been granted in recent months. One of the committee members is the Guardian’s director of legal affairs, Gill Phillips. One of the most far-reaching proposals is likely to be the idea that pre-notification of application hearings will be given to third parties, including media organisations. That would allow news organisations to be represented in court and make submissions or objections to the judge considering the application. Those proceedings would not, for the most part, be reportable but it is hoped they could lift some of the suspicions of the judicial process that have arisen. Judges have pointed out that many applications involve complaints of blackmail and each case needs to looked at individually. The risk is that pre-notification will lead to details leaking out and being used before an injunction has been obtained. Larger hearings are also likely to mean increased costs, making resort to privacy orders open to even fewer, wealthier litigants. The scale of the issue remains unknown. The committee is known to have called for better information about the number of privacy orders being obtained. The Ministry of Justice has already said that its chief statistician is examining ways in which figures can be compiled about the number of superinjunctions and orders in force. Estimates vary from about 20 to as many as several hundred. Another issue the report may address is the question of how far parliamentary privilege protects the media in reporting speeches by MPs or peers that may be in contempt of court orders. Stoneham’s question on Thursday morning, widely reported by the media, led to the change in Goodwin’s order by mid-afternoon. Some legal authorities warn that current legislation leaves newspapers open to prosecution, while Twitter and the outer reaches of cyberspace are in effect immune to judicial disapproval. In advance of the report’s publication, the anti-censorship organisation Article 19 branded superinjunctions as “illegitimate limits to freedom of expression” and said they should be prohibited. It added: “The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.” Speaking in the Lords, the former chancellor Lord Irvine denied that judges have been “usurping the role of parliament” by creating novel legal precedents. “Judges are under instruction from parliament in the Human Rights Act to balance the right of respect for a person’s private family life against the right of freedom of expression in article 12,” he said. “The scales are weighted in favour of freedom of expression because the act requires judges to have particular regard to its importance.” (Section four of that article says that in granting injunctions courts ‘must’ have ‘particular regard to … freedom of expression’.) “It is often not just the rights of celebrities which are at stake but also those of innocent third parties, including children,” Irvine added. “There is typically no significant public interest in the disclosure of peccadillos of actors, footballers or reality television contestants, although that helps sell newspapers. A prurient interest does not equate to a legitimate public interest.” Superinjunctions Media law Privacy Privacy & the media Newspapers Newspapers & magazines Sir Fred Goodwin David Neuberger Owen Bowcott guardian.co.uk

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