Page last updated at 00:52 GMT, Tuesday, 23 February 2010

Has the John Terry case doomed super-injunctions?

By Clive Coleman
Law in Action, BBC Radio 4

The lifting of so called super-injunctions in the cases of the footballer John Terry and the multi-national company Trafigura have been heralded by the papers as victories for the press in the battle over tightening publication laws.

John Terry
The super-injunction to protect John Terry's privacy was lifted

It comes after years of anger at what the press has seen as growing limitations on its right to publish stories it sees as in the public interest, stories that the rich and powerful want to stop reaching the public domain using all legal means.

So has there been a swing of the pendulum back in favour of the press?

I would argue there has been, although not perhaps as big a swing as the press is suggesting.

For a number of years the papers have been getting increasingly angry about what they see as the way a law of privacy has been developed to protect the rich and powerful.

They feel this law was born on the back of Article 8 of the Human Rights Act, and that it has been carried aloft by our judges, particularly by Mr Justice Eady.

Gagged

As a result, wealthy or influential individuals have been able to stop stories from getting into print, with the argument that it would infringe their right to privacy.

The papers have felt gagged and have been vociferous in their opposition to the way so called super-injunctions have been used.

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Super-injunctions are highly secret injunctions where the press cannot even refer to the fact that an injunction has been granted. Some estimates put the number of super-injunctions granted since 2004 at about 300, although the secrecy makes it impossible to be accurate.

Another well-known recent case involved an oil trading company called Trafigura. It concerned leaked documents relating to the disposal of toxic waste in the Ivory Coast.

'Legitimate action'

Trafigura were represented by the law firm Carter Ruck.

Partner Nigel Tait, speaking publicly for the first time, told BBC Radio 4's Law in Action programme that: "Trafigura had documents stolen from them, that were sent to the Guardian newspaper, and that were confidential and legally privileged."

Their legal advice was that the documents should not be published, and the Guardian undertook not to publish them.

[The Trafigura case] raises fundamental questions about the rights of parliament, and we think that this is something that badly needs to be addressed
John Whittingdale MP

Mr Tait added that "the judge found that [by taking out the super-injunction] Trafigura had taken legitimate action to protect legitimate rights. But when the document found itself in cyberspace, there was no point in continuing with the injunction.

"But what that really means," he argues, "is that stolen documents can be published in newspapers, and I don't think that's a good thing."

The super-injunction in the Trafigura case failed, but it raised the issue of whether a question in the House of Commons could be reported.

This worries Culture, Media and Sports Select Committee chairman John Whittingdale MP, whose report on Press Standards, Privacy and Libel is published this week.

He argues that the fact that the newspapers were not allowed to report parliamentary proceedings in the Trafigura case, "raises fundamental questions about the rights of parliament, going right back to the Bill of Rights, and we think that this is something that badly needs to be addressed".

Whether or not this happens will depend on the political will of the next government.

'Benefit of the doubt'

So where does this leave the super-injunction?

It is definitely weakened. Although Nigel Tait of Carter Ruck makes the point that someone will go to prison if they are found to be breaching injunctions on the web, and breaching the rule of law.

But the judgement the press is really excited about is the one given by Mr Justice Tugendhat in the privacy case of the now former England captain John Terry.

Having complained bitterly and quite personally for years about judgements of Mr Justice Eady - who journalists believe has advanced the law of privacy - the papers have pounced on the Terry decision as a change of judicial direction.

Mr Justice Tugendhat refused to extend the Chelsea star's super-injunction largely because he found that commercial reputation rather than privacy lay at the heart of it.

Statue of blind folded Justice
Will the law be changed as a result of these cases?

But does his judgement mark some kind of sea change in the judicial approach to privacy law?

Dan Tench, media law partner at the solicitors Olswang thinks that "in this case the benefit of the doubt has gone to the defendant, to the media."

"One can see it as a manifesto judgement of Mr Justice Tugendhat, who laid out his stall saying he may be going to take a slightly different line from Mr Justice Eady."

"But," he argues, "the importance lies in the tone and the feel, rather than the substantive reasoning."

So, have these super-injunction cases actually changed the law?

They have changed the litigation game, but they have not changed the law on the protection of private or confidential information.

The press in general and the tabloid press in particular does seem to feel that it has the wind in its sails.

Coverage in the last few weeks of stories involving the private life of another Chelsea and England footballer, Ashley Cole, who had previously settled actions against news organisations, is an indication that kiss and tell, which many thought almost dead, could be making something of a comeback.

With big changes on costs also likely, it looks as though the news organisations will be emboldened to publish more stories, and defend more actions brought against them in privacy and libel. And they are pretty pleased about it.

Law in Action, is on BBC Radio 4 on Tuesday 23 February at 1600 and Thursday 25 February at 2000 GMT. Listen via the BBC iPlayer or download the podcast.



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