Neuberger: media to gain notice on injunctions but status quo is working

The committee charged with reviewing the use of superinjunctions has called for the media to have advance notice of privacy orders and for the Government to monitor the use of injunctions.

Pulling back from recommending major changes in its 100-page report, the committee chaired by the Master of the Rolls Lord Neuberger (pictured) has argued that the current regime for granting injunctions is working effectively.

The report includes draft guidance setting out the procedure to be followed when applying for private or confidential information to be protected by an injunction, which is intended to ensure the media are informed in advance of applications for non-disclosure orders. Such a move would make it easier for the media to contest privacy applications.

The report comes against a backdrop of an increasingly heated debate over the role of injunctions, media ethics and calls for statutory reform of privacy law.

Shortly after the publication of the report, news emerged that a footballer had launched a High Court action against Twitter and a number of its users in relation to the reporting of an injunction. The case – CTB v Twitter Inc and Persons Unknown – was filed in the Queen's Bench Division of the High Court last week

Schillings, which has been instructed for the claimant, confirmed that the disclosure order was taken "to obtain limited information concerning the unlawful use of Twitter by a small number of individuals who may have breached a court order". The footballer, referred to as CTB, had obtained an injunction against The Sun and former Big Brother contestant Imogen Thomas before widespread speculation about his identity later began to circulate on the internet.

The developments follow weeks of sustained criticism of the use of privacy-related injunctions in the media.

In his report, Neuberger states: "Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And, when it is ordered, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment."

The report added that superinjunctions cannot restrict Parliamentary debate, but Neuberger warned that reports of Parliamentary proceedings that tried to contravene injunctions may be in contempt of court.

The committee, which was set up in April last year, rejected the need for specialist judges to hear injunctions as "neither justifiable nor practicable" as well as rejecting the case for a fast-track or compulsory appeal process.

The report highlights the relative rarity of superinjunctions, which restrict even the publication of their existence. Since the superinjunction handed to Chelsea footballer John Terry last January, the committee has said it is only aware of two further superinjunctions being granted.

The report does conclude there were "justifiable concerns regarding excessive use of injunctions but states that these "concerns have now been addressed", noting that superinjunctions are now granted only very rarely and often only for "very short periods".

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Committee members

Desmond Browne QC, 5RB
Rod Christie-Miller, chief executive of Schillings
Alasdair Pepper, partner at Carter-Ruck
Ministry of Justice head of legal policy Michelle Dyson
Lord Justice Moore-Bick
Mr Justice Tugendhat
Marcus Partington, deputy secretary/group legal director at Trinity Mirror
Gill Phillips, Guardian News & Media director of editorial legal services
John Sorabji, barrister, legal secretary to the Master of the Rolls.

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Views from the profession

"How I laughed when almost immediately I saw that the report had been condemned by an MP as an "attempt to gag Westminster reporting". This is, of course, as much nonsense as the allegation that Trafigura or Carter-Ruck had tried to do the same [Carter-Ruck represented the company in obtaining its 2009 superinjunction]. It is a great shame that the facts get so distorted in the important public debate we should be having on the extent of our privacy laws". – Nigel Tait, partner, Carter-Ruck

"Lord Neuberger's report is characteristically balanced and practical. It emphasises that judges did not invent privacy law, but rather that it was the Human Rights Act, as passed by Parliament in 1998. It recommends practical ways in which fears of open-ended privacy injunctions can be allayed, although it goes nowhere near recommending that judges' discretion to grant such orders should be constrained." -paul-lomas-freshfields Adam Wagner, barrister, One Crown Office Row

"These are sensible proposals to fine-tune and clarify the processes for the judges to balance the competing interests of privacy and free speech; but, despite the virulent press campaign over the past year or so, this is not radical reform. A fascinating issue is the tension between parliament and the courts. Clearly parliament is supreme and its privilege has to be protected; but when is it an abuse of that privilege to use it to publicise injuncted matters not as part of parliamentary business but specifically to undermine the court order concerned – because you don't like the court order and think the judge was wrong?" – Paul Lomas (pictured), litigation partner, Freshfields Bruckhaus Deringer

"It must be obvious to most sane people, even if not to sections of the press, that an anonymity order is often necessary in a privacy case because disclosure of the fact that an individual has been granted a privacy injunction would otherwise defeat the very purpose of the order." – David Engel, head of reputation protection, Addleshaw Goddard