Privacy and Injunctions - Evidence - Parliament

The Newspaper Society—Written evidence
courts and judges fail to give due weight to the importance of freedom of expression in
interpretation and application of both the substantive law, or if the judges and courts
fail to enforce procedural requirements, particularly in relation to section 12 of the
Human Rights Act 1998 which was intended to promote and safeguard freedom of
expression and the system/jurisprudence of voluntary self regulation. It was framed to
provide specific protection against prior restraint by way of injunction or other (non-
criminal) order of the courts and tribunals and ensure that the grant of injunctions
remained rare in freedom of expression cases (see Hansard, HC debates 2 July 1998.
It was also clearly intended to prevent any increased or routine grant of interim
injunctions on privacy grounds, precisely to avoid the combination of the new and
existing law leading to injunctions being routinely granted to preserve privacy/status
quo, without regard to the special importance of freedom of expression and press
freedom, including its practical operation, and any consideration of public interest or
reasonable belief therein, merits of the case, material already in the public domain,
especially as pre-publication injunctions were, rightly, not granted in libel cases, where
defences of truth or privilege were to be advanced).
6. Interim injunctions are often de facto permanent in practice, because news is a
‘perishable commodity’ and media organisations may have to make pragmatic decisions
on cost grounds not to contest an injunction, nor press to full trial, however serious
the subject matter or legal points at issue.
7. This in turn can have a chilling effect upon investigative journalism or straightforward
reporting (e.g. court cases), to the detriment of local communities’ right to know about
issues of serious public interest.
8. It is important that these issues are placed in their wider context and not simply
viewed as a national media v celebrities problem and problematic cases confined to the
use of super-injunctions or anonymised injunctions involving such parties.
9. As demonstrated by earlier cases on pre publication restrictions affecting the regional
press, which were pursued to the House of Lords, injunctions unchallenged can
crucially affect local reporting and local knowledge of matters of great local
importance.
10. The Liverpool Echo was ultimately able to resist injunction of the publication of the
results of its investigative journalism into alleged financial irregularities because it was
able to take its case through the courts to the House of Lords, because of the support
and resources of Trinity Mirror Group (Cream Holdings Limited and Others v
Banergee and Others [2004] UKHL 44) - a small weekly newspaper publisher may well
not have been able to do so. In re S (FC) (a Child)[2004] UKHL 47 Lord Steyn noted
that The Romford Reporter which had earlier contested reporting restrictions and
obtained modification of an injunction imposing restrictions upon reporting a murder
trial, had to withdraw to avoid the risk of being ordered to pay costs:
‘35. Fourthly, it is true that newspapers can always contest an application for an
injunction. Even for national newspapers that is, however, a costly matter which may
involve proceedings at different judicial levels. Moreover, time constraints of an
impending trial may not always permit such proceedings. Often it will be too late and
the injunction will have had its negative effect on contemporary reporting.
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