Now, let me first say that I can see the logic behind these injunctions, and behind so-called "super-injunctions" that also ban people from mentioning the existence of the injunction itself. It is quite clear that it would be pointless granting an injunction that banned publication of the identities of two politicians involved in a gay affair if the papers could happily tell us that it resulted from the case of Cameron & Clegg vs Associated Newspapers plc, for example. However, understanding a principle behind something does not mean I think something can be extended without limit.
One particular aspect of these injunctions worries me. If it applies to everyone, then it applies to me also. That means it would be contempt of court for me to tweet or to blog details of this affair. However, because it can't be reported, I don't know whose affair it is that I can't talk about.
That seems to me to breach a basic principle. If I am subject to an injunction granted by a Court, then the scope of that injunction ought to be spelled out to me, such as by serving the injunction on me. All of the injunctions that I have obtained for clients have said that they start as of the date on which I serve them on the unlucky recipient - and quite rightly. Bur here we have an injunction that applies to me but whose terms I am not aware of. That seems fundamentally wrong. It is also worrying, given that contempt is an offence punishable with imprisonment and one which would bar me from my profession.
I think I see a way forward, though. Presumably, I could write to the Court or to the celeb's solicitors to ask them for full details of the case, including a copy of the injunction and a copy of the evidence used in support of the application for it. After all, I am a party to the case - I must be, as I have been injuncted. As one of the subjects of the injunction, I must surely have the right to challenge it in the Court of Appeal, in which case I need a copy of the papers in order to develop my grounds of appeal.
Of course, in providing me with these papers, the solicitors will be providing mr the identities of the guilty parties. Tsk. Ah well. And if we all do that, then we will all know, and (amusingly) will have been told at the celeb's expense.
Seriously; does anyone see a fundamental flaw in this reasoning? And does anyone know which solicitors are involved?
It does go to prove one thing, though. The easiest, and the cheapest, way of stopping the papers reporting that you have been involved in extra-marital affairs is to keep your todger inside your trousers.
But what happens if you don't know about the injunction? There are quite a lot of celebs live around this district, suppose I saw one with a lady who wasn't his wife and happened to mention it in my blog. How would I know if there was an injunction; am I expected to be a thought reader?
ReplyDeleteIn practice, I doubt if I'd recognise a celeb if I saw one, as a couple of times I've spoken to a man walking his dog through our local woods, and on the most recent occasion when my wife was with me she said afterwards "Do you know who that was?", and I had to admit that I didn't, but he was friendly and I liked his dog!
"It does go to prove one thing, though. The easiest, and the cheapest, way of stopping the papers reporting that you have been involved in extra-marital affairs is to keep your todger inside your trousers."
ReplyDeleteSelf-control? As well expect that of a child of four, as a modern 'celebrity'..!
Tsk, tsk, Patently. What is this all about?
ReplyDeleteIf it applies to everyone, then it applies to me also. That means it would be contempt of court for me to tweet or to blog details of this affair.
a) You are not a newspaper editor or in the media.
b) As you point out, you are not party to the information. You will not be publishing anything knowingly in the near future so trust me, buddy, they would find it very difficult to pin contempt of court on you. I accept you are being denied some entertainment but none of your fundamental rights are being infringed.
"That seems to me to breach a basic principle. If I am subject to an injunction granted by a Court, then the scope of that injunction ought to be spelled out to me, such as by serving the injunction on me. Roffle! This coming from a patent lawyer. Look, I am subject to patents, copyrights, trademarks which I could easily infringe. I don't know anything about them either. All of us are. This line of argument isn't going to get you anywhere.
I want to make three points:
1. If we analyse a simple scenario, there are three parties in these actions - the celebrity, the lady and the newspaper. The newspaper cannot publish, since issues over privacy and well-being outweighs their freedom of expression, albeit they will argue it is in the public interest to expose wrongdoing. The celebrity is protected even though they may have transgressed. However, my concern is for the lady. (To some this may be unpalatable, but she does have rights.) She is prevented from talking about her own private life and MADE to stay completely shtum. That is, in my view, a worrying aspect of these super injunctions.
2. There are huge issues at stake. As EP hinted at so beautifully to make us think, reputation and privacy are intertwined and while his wife thinks of reputation and has an opinion, he sees a man with a nice dog. For me, privacy is about being allowed to conduct the minutiae of life without interference, while when it comes to more contentious issues, the balance should move more in favour of freedom of the press and the public interest. Others may feel a celebrity's reputation and public persona is far more important and should be afforded protection.
3. A Judge will frequently be swayed by the potential harm that may be done to the innocent wider family of the celebrity, such as his children and partner. However, I do not think the role of the Court is to protect these people, that was/is the responsibility of the celebrity.
Perhaps the Courts can give them breathing space, but the pendulum has swung too far in favour of the individual with super injunctions. It provides undesirable security to celebrities to do as they wish and as Ian Hislop pointed out, precedents being set may well make it difficult to expose something that is in the public interest at a later date.
It may start with todgers, but it may end up concerning wider issues. As I often say to todgers, it is time to get a grip of the situation. :-)
From my limited knowledge of the terms of the order, EP, to mention that (and especially to tweet it or to blog it) would be contempt of court. Which is the conundrum; in order to tell us what it has been ruled that we cannot do, the injunction must be breached.
ReplyDeleteJulia - an unfair comparison. 4-year-olds across the nation are insulted. ;-)
Meaured - thanks for the legal viewpoint, although I can dismiss your IP points immediately. All forms of IP are either on a public, searchable register (and therefore within your ability to know them) or limited in their scope of infringement to parties who copy the originator (and who are therefore on notice that they may be infringing). There is no form of IP which you can infringe without having copied, but which is not on a public register.
Also, my understanding of the injunction (not that I know its precise terms...) is that it applies to blogs and Twitter... so I am an in fact an editor! If you could kindly keep your discussion away from specific examples, that would be appreciated :o)
Your other points are valid; they are separate and additional objections to this form of injunction imho. As regards the lady, perhaps that is a form of sexism in the law. Do we need a test case to see if a Judge will allow a lady to prevent her former beau from boasting of his conquest?
The judgement states "Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment"
ReplyDeleteWhilst the best bit of this is the misspelling of "Judgement", I think it might mean that you might not be able to get details beyond the document.
http://www.carter-ruck.com/Documents//OPQ-v-BJM-200411.pdf
Thanks Matthew - the judg(e)ment makes interesting reading.
ReplyDeleteIt seems that the aim of the litigation was to prevent publication of intimate photographs of the woman and the claimant, which the woman was proposing to sell to a newspaper. A somewhat unwise invitation was made to the claimant to make an offer instead, which led to an impression of blackmail (which may be an accurate or inaccurate impression).
There is clearly a good cause of action in breach of confidence which justifies an order preventing publication of the photographs. That appears to have been elided into a general ban on publication of the identities; that seems to me to be unjustified. The threat to the claimant's family's health by publication of the images flows from a clear breach of confidence, but the threat from publication of his identity flows from his own stupidity. There is a parallel in the concept of legal (and other) privilege, which only conceals that which passed between the client and advisor, not the existence of the contact.
(As an aside, the small degree of sympathy I held for the lady's position has also been somewhat dented...)