Some interesting legal points come out of the John Terry affair.
First, it seems that, eventually, the High Court found, by lifting the injunction, that the freedom of the press to report under Article 10 of the European Convention on Human Rights trumped John Terry’s Article 8 right to privacy.
Much of the discussion here seems to have been on the point that publication would damage John Terry’s commercial interests rather than true ‘privacy’ issues such as the trouble it may cause his wife and children, but it is nonetheless a decision to note.
Rather more significant, however, is the whole idea of the ‘super injunction’ as was the order originally obtained by Terry’s lawyers. This is not only an order banning the publication of a particular piece of information but also an order that the ban itself cannot be spoken about. In other words, the people against whom the order is made not only cannot report what they originally wanted to but they can’t even say that they can’t!
Clearly if they could say ‘we’ve been banned from reporting John Terry’s affair’, then the damage is already more or less done and it was for this reason that the courts invented the idea of the super injunction but it is potentially something of a monster.
An example of how relevant these orders can be in the business world was the super-injunction raised in September 2009 by solicitors on behalf of oil trader Trafigura, prohibiting the reporting of an internal Trafigura report into the 2006 Côte d’Ivoire toxic waste dump scandal.
The existence of the super-injunction was only revealed when it was referred to in a parliamentary question (mention in which Parliamentary privilege permits the disclosure without being held in contempt of court), which was circulated on the internet, leading to the injunction being varied (before it could be challenged in court) to permit reporting of the question. By long legal tradition, parliamentary proceedings may be reported without restriction. Parliamentary proceedings are only covered by qualified privilege.
How many such orders have been made is difficult to say as the general public only get to know about the existence of the original order and what it was banning if it is successfully challenged in court, but the fact that there are any at all is hardly a good advertisement for ‘open justice’.
The Guardian newspaper reported in October last year that it had been served notice of applications for this type of order twelve times in the period from January 2009. The judges invented the orders and can change their format too but so can Parliament by primary legislation if it feels so inclined. This is hardly likely to be a vote winner in the forthcoming General Election as there are so many more headline grabbing issues, but it is certainly something that needs thinking long and hard about if we are to maintain our reputation in the UK for fair and transparent legal proceedings.