Opinion that the real issue surrounding the "superinjunction" debate is not the law of privacy but how the courts make it interact with the right to freedom of expression

“Superinjunctions” have become the most talked about legal remedy in the UK this year, probably because of the public’s insatiable appetite for celebrity lifestyles and gossip.

For lawyers, however, their use in England & Wales has created a minefield which includes questions of how enforceable they are in Scotland, their effectiveness in the face of the Twitter/Facebook phenomenon, and their future desirability as politicians have used absolute privilege to undermine their force.

A superinjunction is the informal name for an injunction which not only prevents the story being told, but the existence of the injunction itself being disclosed. Superinjunctions were used to prevent the “Footballer gags your favourite tabloid” type of story which, in a sense, had the same reputational and intrusive impact as reporting the whole warts-and-all article originally intended for publication by the newspaper. They have taken longer than one might have anticipated to arrive, and indeed, when the Human Rights Act was first passed, the court was often reluctant to interfere with the right of the individual to sell their kiss-and-tell story to a newspaper. The court appeared to favour the right to freedom of expression over privacy.

Two cases in 2004 created a sea change in that approach. The first was Naomi Campbell’s narrow 3-2 victory in the House of Lords, which held that the Mirror’s report and photograph of her leaving a Narcotics Anonymous meeting interfered with her article 8 rights. The second was Caroline von Hannover, who successfully argued in Strasbourg that publication of photographs of her in public places could still constitute an infringement of her right to a private and family life.

Since then, decisions in Mosley and in several superinjunction cases, which we are not permitted to discuss, have strengthened the grip which article 8 now holds over our media.

They have not been used in Scotland to date, although there would be nothing to stop anyone from seeking an interim interdict against publication and, furthermore, seeking a restricted reporting order which would have exactly the same effect as a superinjunction. While on one hand that might say more about our celebrity culture, or lack of it, here, England has become the favoured jurisdiction of many litigants. It has worked to some degree for those seeking confidentiality, but the difficulty is enforcement where, for example, a printed publication distributes in another jurisdiction, but not in an online edition. The English court has no jurisdiction over Spanish, French or even Scottish publications, provided circulation remains outwith the English borders. However, the dissemination of almost all print publications on the internet has now created a gateway for forum shopping on the basis that publication online places one within the jurisdiction of every court in the world.

It is ironic, therefore, that the internet has circumvented the authority of the High Court. The reasons for this are not legal and are probably too varied to set out here, but in essence, the vehicle of social networking appears to be the main foe to a celebrity who doesn’t want his or her dirty laundry aired in public. Those using Twitter appear to have decided in one mass electronic protest against superinjunctions to rally against the court’s decision, strengthened in their resolve when the footballer in the most notable case to date sought an order to “out” the rebels.

Furthermore, dissenters have now been found in both Houses of Parliament, as MPs and peers have used their parliamentary privilege to expose what they consider was either an unfair decision of the court, or one which became farcical as a direct result of “tweeting”.

Where does that leave the law? In one sense, the legal position is the same in Scotland as in England, laying aside the importance of ensuring enforceability up here, as the interpretation of the law would effectively be based on the same principles.

There are continued calls for Parliament to legislate on this from both sides of the Convention fence, as the competing supporters of freedom of expression and privacy continue to trade blows. For those calling for a Privacy Act, however, it is probably not necessary. When Parliament passed the Human Rights Act in 1998, a law of privacy was enshrined into UK law, as was the right to freedom of expression. The issue which should be the focus of debate is the courts’ interpretation of these juxtaposed rights. It is unlikely that the rebellious tweets will change their Lordships’ minds, as the recent footballer’s case involved three separate attempts for the order to be lifted, all of which foundered even in the face of howls of protest from all sides, as well as a call for a change in approach by both the Prime Minister and Scotland’s First Minister.

The Author
David McKie is a partner in Levy & McRae solicitors and Head of Media Law at the University of Glasgow
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