21 May, 2011 — Duke

This is the second of three posts examining Privacy law in the UK. The first post examines the development of a law on privacy, its scope and the basic legal theory. This post will look into the application of the law, focussing on contempt of court, the need for injunctions and their application, including orders contra mundum. It will briefly discuss the issue of Parliamentary Privilege. The third post will consider the principle of Open Justice, and super-, anonymised and hyper- injunctions.

Contempt of Court

Contempt of Court is laid out both in common law and in the Contempt of Court Act 1981. This makes it a criminal offence to publish something (including any form of communication to the public or a sector of it – s2(1)) which “creates a substantial risk that the course of justice in [any] proceedings … will be seriously impeded or prejudiced.”

The idea behind this is straight-forward; everyone has the right to a fair trial (either at common law, or more recently, under Article 6 of the ECHR) and this prevents newspapers or individuals from interfering with this. While it is acceptable to publish “fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith” (hence I was able to publish summaries of the hearings in the DEAJR) or take part in a “discussion in good faith of public affairs or other matters of general public interest”, it prevents individuals, or newspapers from going to far.

Obviously, it does not always prevent this, hence the recent contempt of court proceedings launched against the Sun and the Daily Mirror.

Contempt of Court also covers failure to obey a Court order, or showing disrespect (or contempt) for the Court officials, including judges. In privacy cases, this means that there should be very limited public discussion of the events of the case, and any injunctions should be obeyed, or the infringer could face unlimited criminal sanctions.

The Need for Injunctions

As discussed in the first part of this guide, no quantum of damages or Court order can undo a breach of their privacy caused by the publication of intimate details of their private or family life. This contrasts with defamation law where damages can be used to publicise a counter-argument, and the offending party can be forced by the Court to publish a retraction and apology. This creates the need for preventative measures.

Under the current rules (laid out both in common law and in the Civil Procedure Rules which govern the operations of our civil courts) if a party (A) has evidence to suggest that another party (B) is going to misuse their private information, or breach their confidence, they may apply to the Court (usually the Queen’s Bench division of the High Court) for an injunction, preventing that breach. There are cases on this from the 18th and 19th centuries, so this principle is not new, however it has been forced to develop to changes both in the law and in technology.

Interim Injunctions and Urgency

In most cases, there is a limited window between when the claimant (A) learns of a breach and when the breach will occur. Often in cases involving celebrities and newspapers, they receive warning when the newspaper seeks to clarify part of the story or notify them of it, or when someone “tips them off” to the publication. In other cases, such as the highly publicised and discussed case of ZAM v CFW & Anor [2011] EWHC 476 (QB), there may be issues of blackmail, with the claimant being notified by one of the parties. In these cases, it is necessary for any injunction to be granted as soon as possible.

The procedure here is that the claimant will go before a Court and seek an injunction, with or without the defendants present. There will be a short hearing, often before a duty judge – in JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB) the first hearing was 2 hours 20 minutes, ending at 9.18pm on a Friday night. Due to the urgency, the judge will have to make a quick decision whether or not to grant an injunction. This will involve deciding whether or not publication would amount to an unlawful breach (on the substantive law), based on the information available to him.

If an injunction is granted, it is only a temporary or interim injunction and, in most cases, will have a return date on it, when there must be a full trial on the matter to decide whether to grant a permanent injunction (or award damages if there has already been some breach). Increasingly, judges have also given public, written judgments in these cases (within a few days of the initial hearing) explaining their decision and, in some cases, changing the terms of the injunction.

s12 of the Human Rights Act

When the HRA was going through Parliament there was a great deal of concern among the mainstream media that Article 8 would have a significant effect on their business, in terms of limiting their ability to publish stories about the private lives of individuals. As a result, an additional section was added to the Act, giving extra protection to freedom of expression (beyond that given in Article 10 alone).

Section 12 gives explicit instructions to judges in how to make orders that might affect freedom of expression. In particular, it covers what extra care must be taken if those whose rights may be restricted are not present, and states that no injunction preventing publication of any material before a trial can be made “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

This makes it clear both that Parliament (and the mainstream media) were aware that the Human Rights Act would be used to protect privacy in the way it has been, and that judges must consider freedom of expression and the public interest before granting any injunction of this kind.

The Spycatcher Principle

Injunctions, when granted, only bind those against whom they are issued. In privacy cases, these may be a newspaper about to publish a story or an individual (known or unidentified) who is threatening or likely to try to breach confidence by disclosing facts to a newspaper or other party. Unless specified, or unless the Spycatcher principle applies, they do not bind any other party or the public.

The Spycatcher principle comes from Attorney-General v Newspaper Publishing Plc [1988] Ch 333 (one of a series of cases concerning the publication of the Spycatcher book). Put simply, it states that an interim injunction (granted pre-trial) “not only binds those against whom it is issued, but also any third parties who have notice of the injunction” (see the recent Report of the Committee on Super-Injunctions, (“the Report”) at 2.6).

This means that once a claimant has their interim injunction, they can bind any third party they want with it by notifying them of it. However, this only applies to the interim injunction – the final injunction (post-trial), if put in place, only binds the parties to it. This has, understandably, led to an unusual situation where a claimant may get an interim injunction against one party, notify it to certain newspapers (who were not already aware of the information protected by the injunction), and then, having won their case, find that those newspapers are no longer prevented from publishing – although they would still be liable for damages.

Orders Contra Mundum

These are court orders that bind everyone (literally against the world) and are “only very rarely granted”. They are used as final judgments, most often in cases involving children and where an individual’s life may be in danger. In OPQ v BJM & Anor [2011] EWHC 1059 (QB), an injunction was granted contra mundum preventing the selling or publication of “intimate photographs and other information” relating to the claimant. This was given in an attempt to circumvent the problem identified above, as there was “good reason to believe that the allegations may well [have been] published” once the Spycatcher restraints had fallen away (at [10]).

In giving this order, Eady J (one of the two main judges in this area) followed a similar decision made by Dame Elizabeth Butler-Sloss P in Venables and Thompson v News Group Newspapers Ltd [2001] Fam 430, where it was felt that the claimants’ lives were in danger. However, these appear to be stand-alone cases, and guidelines given by the Report (above) should ensure these orders are no longer needed, by obtaining written assurances from newspapers (and other third parties) in return for notifying them of the details of an interim injunction.

Parliamentary Privilege

Parliamentary Privilege is the principle, laid out in the Bill of Rights (1688), preventing the Courts (or government) from interfering with the debates in Parliament. The Bill states:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

This means that the discussions and debates in Parliament are absolutely privileged and cannot be questioned either by a Court or by any authority other than itself. This grants Members of both Houses immunity for liability under defamation, privacy or similar laws, during debates in Parliament. This right can be waived (and has been in cases where speeches have been needed as evidence supporting an MP), but cannot be taken away without consent.

Following Stockdale v Hansard [1839] EWHC QB J21, where Hansard (which publishes reports of Parliamentary proceedings) was successfully sued, Parliament passed the Parliamentary Papers Act 1840, granting absolute privilege to any publisher of an authorised report of proceedings in Parliament (likely now covering the various Parliament TV services). However, it only grants qualified privilege to others reporting on events (for example, the media), even if using extracts from official reports. This means that they must prove there was no malice in their publication.

The result of this (assuming the Parliamentary Papers Act is still in force; there is some debate about this area) is that there is nothing a Court can do to prevent an MP or Lord from breaching an injunction in Parliament. However, this immunity may not cover subsequent reporting in the press – but the matter has not been tested in court (in particular, see the summary of the Trafigura incident given at 5.10 onwards of the Report).

There is also some doubt as to whether or not Parliamentary Privilege extends to discussions between an MP and one of their constituents. This will be discussed further in the third post on privacy, along with the related issues of super- and hyper-injunctions, anonymity and Open Justice.