Privacy and Injunctions - Evidence - Parliament

The Rt Hon. the Lord Neuberger of Abbotsbury and Mr Justice Tugendhat—Oral evidence
(QQ 486–535)
not. But in most personal privacy cases, while they have an element of secrecy in them, the
main element has nothing to do with secrecy; it is harassment or taunting, as I sometimes
prefer to call it. For example, it is not in the least private that somebody is of a particular
ethnic origin, but if every time their name is referred to their ethnic origin is added there
comes a point at which a message is being conveyed and at a certain point it is unlawful. It
may be harassment or something else; it may be discrimination. The bloggers and tweeters
who tweet what idiots we judges are think, I assume, that what we are concerned to do is
to stop disclosure of a secret, and they are saying, “Ha, ha, you can’t keep it secret.” But if
what we are attempting to do is something quite different, which is to stop harassment,
intrusion and taunting, then all that the bloggers and tweeters are doing is demonstrating to
us how necessary it is to keep the order in force. There is a difference between the
blogosphere and other media. The two main differences are that people take more seriously
something that has passed through the editorial department of an established newspaper; it
carries more weight. You are more likely to think there is, or may be, something in it if it
comes from an established news organisation, whereas you may dismiss anything on the
blogosphere as being impossible to verify and of little value.
There is also the question of whether or not something is ephemeral. Nowadays, in a
newspaper most organisations have archives which appear to be everlasting, so once you get
your name in the BBC or The Guardian it is unlikely that it will ever be removed, whereas
something in a tweet or blog is much less likely to be everlasting. There are claimants who
are well aware that, if an injunction is granted, it will not stop people disclosing or discussing
the information on the internet, but nevertheless they wish to stop it getting into a
publication which carries some degree of weight.
Q530 Chairman: Finally, perhaps I may ask you about what has become known as
jigsaw identification: pictures appearing gratuitously in newspapers with no obvious relevance
other than that they happen to be next to a story about somebody obtaining an injunction. Is
this a problem, and what should we do about it?
Lord Neuberger of Abbotsbury: There is a recent judgment on the topic by
Mrs Justice Sharp.
Mr Justice Tugendhat: It is called DFT, and it has been followed a number of times. It
is a question of framing an order in such a way as to prevent jigsaw identification. The way
orders are framed—it is now in the model order that was in the report—is to say in an
appropriate case that nothing must be published about the case other than what is contained
in a public judgment and the order itself, but that does not stop it altogether. It is a problem.
Q531 Chairman: Newspaper columnists have published articles that mean that
anybody who is aware of somebody covered by an injunction can instantly see what the
columnist is getting at. It happens quite regularly. Do you regard that as a potential
contempt, or is it just tweaking the nose of the law, or what?
Lord Neuberger of Abbotsbury: Both of us have said in different ways that so many
of these cases are fact-sensitive. Undoubtedly, in some cases you would be able to say that it
is so obvious what is being said here; it is almost the equivalent of innuendo in a defamation
area; it is an infringement of the court order. All one can say, perhaps rather limply, is that it
766