Superinjunctions: they are the newspapers’ own fault.

The post­ing on Twit­ter of the alleg­a­tions under­ly­ing the recent series of super­in­junc­tions provides a good time to take a look at why, in my view, the injunc­tions are a bet­ter thing than you might think.

I’ll do this by work­ing back­wards to the injunc­tion. But first, I need to estab­lish one con­cept.

What is inter­est­ing to the pub­lic is not the same as what is in the pub­lic interest. The news­pa­pers con­flate these con­cepts all the time, because it is in their interest, leg­al and com­mer­cial, to do so. But as Eady J said, in Mos­ley:

It is not for journ­al­ists to under­mine human rights […] merely on grounds of taste or mor­al dis­ap­proval.”

Human Rights. Not “Rights for those whom the news­pa­pers decide are OK.” They apply to every­one. All of the time. And I’d sug­gest, in gen­er­al, the news­pa­pers’ mor­al dis­ap­proval — pruri­ence, I think, is the best word — is much more to do with selling news­pa­pers than any sense of provid­ing inform­a­tion lead­ing to (using one defin­i­tion) any bet­ter­ment of gen­er­al wel­fare.

Now, news­pa­pers have rights too. I don’t deny that. But the for­um for these rights to be judged is ini­tially in court, not firstly in print and then in the court. At least the courts are inde­pend­ent — unlike the judge and jury of the press.

In court, we would see a fair tri­al of the issues. In such a tri­al, we would see two sets of human rights played out in oppos­i­tion to each oth­er: the right to pri­vacy of the indi­vidu­al (and their fam­ily), as guar­an­teed by Art­icle 8 of the European Con­ven­tion on Human Rights, incor­por­ated into UK law by the Human Rights Act 1998 — and the news­pa­pers’ right to freedom of expres­sion, guar­an­teed by Art­icle 10 of the Con­ven­tion.

So, at a tri­al, the court effect­ively has a three step job to do. It needs to answer three ques­tions: Is the news­pa­pers’ right of freedom of expres­sion engaged? The answer to this is invari­ably “yes”. Is the indi­vidu­al (and their family’s) right of pri­vacy engaged? That is often less clear. But if it is, what is the bal­ance in the pub­lic interest between the rights of the indi­vidu­al and the rights of the news­pa­per?

These are issues for tri­al. But put your­self into the person’s shoes. Even if you win, what do you get? Dam­ages — and a lot less than they used to be. Less than £50k. And your reas­on­able leg­al costs. More often than not, your dam­ages won’t cov­er the dif­fer­ence between your reas­on­able leg­al costs and your actu­al leg­al costs, which can be north of £250k without even try­ing. (I’ll post about how this works in the future.)

Oh, and an apo­logy. Remem­ber that 3 page art­icle that was the thing that kicked this all off? 3 pages of a tabloid is at least 600 square inches. You’ll be lucky if your apo­logy is 2. They’ll remem­ber the art­icle. You’ll be lucky if people even notice the apo­logy.

So — frankly, even if you win at tri­al about a pub­lished art­icle you’re already screwed. No mat­ter how inno­cent you are. Or how rich you are. It’s out there. Game over, from the news­pa­pers’ point of view. They’ve made their profit on the edi­tion.

So how can you pre­vent being screwed by pub­lic­a­tion? By pre­vent­ing it — by an injunc­tion.

What hap­pens with an injunc­tion is that the news­pa­per can’t print the story until they lose the case at tri­al. They win at tri­al? They print. You get screwed (and rightly so). You win? They don’t get to print. It still costs you fin­an­cially, but the story — which had it been prin­ted, would have really hurt you — doesn’t get prin­ted.

So what the injunc­tion does is freeze the situ­ation until tri­al. Rather than get a 2 inch apo­logy for a 600 inch art­icle, the art­icle doesn’t get prin­ted unless the news­pa­per can jus­ti­fy it — prove that it’s jus­ti­fied in the pub­lic interest.

Now, of course, news­pa­pers don’t like this. They want to make money by pub­lish­ing things that are inter­est­ing to the pub­lic. So they tried to get around injunc­tions. Roughly by pub­lish­ing stor­ies like this:

TV celebrity X has taken out an injunc­tion pre­vent­ing his iden­ti­fic­a­tion, while we have evid­ence that he had an affair with a co-presen­ter. In oth­er news, doesn’t June Smith, wife of TV presen­ter John Smith, look upset in this pho­to? We hope she is all right.”

This is known as “jig­saw iden­ti­fic­a­tion”. And the news­pa­pers doing exactly as I describe above is why super­in­junc­tions were inven­ted. Because without them, the news­pa­pers had found a way to make an ordin­ary injunc­tion impot­ent.

So super­in­junc­tions are neces­sary to pre­vent news­pa­pers print­ing what the hell they want, with ulti­mately no leg­al retri­bu­tion for them at tri­al even if you are com­pletely inno­cent. They have insur­ance for this sort of thing. And all of their actions indic­ate that in most instances, what they are look­ing to do is print a story that sells, not one that cre­ates pos­it­ive action by inform­ing. If that is what they actu­ally did, there are argu­ments in law if what they are doing is journ­al­ism, and not merely gos­sip.

What super­in­junc­tions do is pre­vent news­pa­pers print­ing inform­a­tion that has not been found, at tri­al, to be in the pub­lic interest. If the news­pa­pers can explain why what they wish to print is in the pub­lic interest, then (now) the injunc­tion will not be gran­ted in the first place.

Yes, pub­lic scru­tiny has got us to this point. Trafig­ura was wrong. The judi­ciary aren’t per­fect, espe­cially when the leg­al ground is mov­ing. But this is not a reas­on to give news­pa­pers free reign. The ques­tion to ask is whose use of their undoubted power has been more irre­spons­ible over­all? Judges or news­pa­pers?

There is a bet­ter bal­ance to be struck. It’s not right. It will improve. But what I am wait­ing to hear is when news­pa­pers men­tion their respons­ib­il­it­ies quite as often as their rights.

In oth­er news: I remem­ber the day where the papers were more to do with news than enter­tain­ment.

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