Tuesday, April 26, 2011

Injunctions and superinjunctions

This topic has cropped up once again in the news. I've already made points about it and how as with so many laws made for specific reasons it's being used in a general way, but what's the legal basis behind all this?

The main balance is between Articles 8 and 10 of the European Convention on Human Right (ECHR) it's not that long or that complicated and a decent summary can be found here. In short we all have a right to a private life, but we also have a right to freedom of expression. So what happens if I want to say something about your private life? How or when do my article 10 rights trump your article 8 rights? Strictly speaking only if the law prevents me:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,[...]for the protection of the reputation or rights of others.
This is where the pre-empting injunctions come in to play. Now one of the points newspapers keep trying to use is that this is all "in the public interest" which is interesting as we possess a "Public Interest Disclosure Act" that is
An Act to protect individuals who make certain disclosures of information in the public interest;
and as such it defines what "public interest" is and oddly enough knowing that Famous Person A is having an affair with Famous Person B doesn't appear. It seems that the newspaper definition of public interest is 'what the public are interested in' which is amazing as sometimes we don't even know what we're interested in until the newspapers tell us.

There is however a small catch in Article 10's ability to prevent information. It doesn't care whether it is true of not. If rumours were being floated that Famous Person A is having an affair the disclosure of which would damage their reputation an injunction can be obtained that would prevent publication even if it were true. In fact amusingly it's more likely to be true because if it were false and published that would be a libel case.

This leads us to superinjunctions. Regardless of whether it is true the implication that it is means an added injunction under the same protection of reputation can be applied to disclosing that an injunction even exists. So we step through
  1. Famous Person A is having an affair
  2. Famous Person A has taken out an injunction to prevent us discussing certain matters
  3. -
So in principle there are court orders in force that we are all bound by yet aren't allowed to know what they are unless we breach them. Which kind of cuts to the heart of openness and fairness of legal proceedings. But hey this doesn't affect us does it - if you gained access to that information regarding Famous Person A and published it you'd just get a cease and desist letter. You'd only be hauled before court if you refused to take it down or disclosed why you'd taken the offending article down.

Well in reality quite probably yes, but legally you could go to court because you have breached a court order. At that point we reach the point where such injunctions collide with one principle of the law "Ignorantia Juris non excusat" Ignorance of the Law does not excuse. Except that's based on the supposition that it is feasible for the accused to discover before the fact that the act they were about to commit was illegal; which they couldn't.

In theory therefore such superinjunctions are unenforceable unless you are one of the parties present when it was created. It seems that no major media outlet wants to be the first to test it out in court though.