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
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.