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2011 British privacy injunctions controversy


The British privacy injunctions controversy began in early 2011, when London-based tabloid newspapers published stories about anonymous celebrities that were intended to flout what are commonly (but not formally) known in English law as super-injunctions, where the claimant could not be named, and carefully omitting details that could not legally be published. In April and May 2011, users of non-UK hosted websites, including the social media website Twitter, began posting material connecting various British celebrities with injunctions relating to a variety of potentially scandalous activities. Details of the alleged activities by those who had taken out the gagging orders were also published in the foreign press, as well as in Scotland, where the injunctions had no legal force.

The controversy has led to a number of wider issues being publicly examined including freedom of the press, freedom of speech, online censorship, the effect of European treaties on the UK legal systems and fundamental constitutional issues regarding parliamentary privilege and the relation between the judiciary and parliament.

The first major publicised event involving the use of injunctions to prevent reporting in the UK was in October 2009, when The Guardian newspaper reported that it had been prevented by a legal injunction applied for by London libel lawyers Carter Ruck from covering remarks made in Parliament. Other sources, including The Spectator and the blogger Guido Fawkes, then speculated that it related to previous reports the Guardian had printed regarding the oil company Trafigura and their alleged waste dumping in the Ivory Coast.

In April 2011, British daily newspaper The Sun started to publish stories about the alleged sexual behaviour of various celebrities, omitting details which it was barred from reporting, while the injunctions were in effect. The stories variously included Helen Wood, the prostitute who had previously attained notoriety for allegedly sleeping with Premiership footballer Wayne Rooney and an unnamed married actor; Imogen Thomas, former Big Brother contestant and Miss Wales winner and Ryan Giggs, who was later named in the USA and on Twitter as the married footballer; and around thirty other injunctions which had been granted in the preceding year.

In another case, former F1 boss Max Mosley, who had some time before been the subject of a story in the News of the World about his actions and successfully sued the paper for breach of confidence, took the United Kingdom to the European Court of Human Rights, in an attempt to prevent stories about people's private lives being published without first warning those concerned. Knowing that a story was to be published, the subject could apply for an injunction prohibiting publication, effectively creating a privacy law. On 10 May 2011 Mosley lost the case, on the grounds that Article 8 of the European Convention on Human Rights did not require a pre-notification and that such a measure "might operate as a form of censorship prior to publication" due to the severity of the civil and criminal penalties and control thereof, violating its own Article 10, "Freedom of Expression".

The report made no mention of the Internet or new media and how the courts would propose to enforce injunctions against non-UK publishers and non-UK hosted websites. However, commenting on the committee report, the then Lord Chief Justice, Lord Judge, stated that he believed ways would be found "similar to those used against child pornography" to prevent the "misuse of modern technology". Lord Judge has also commented on related technological challenges to the legal system such as use of Twitter in court and use of search engines by juries.

David Cameron was reported in April 2011 to be "uneasy" with the use of super-injunctions. The Culture secretary Jeremy Hunt has stated that the Government does not intend to introduce a privacy law and that it would instead look towards clearer guidelines for judges ruling on injunctions. This was reaffirmed by David Cameron on 10 May 2011 when he blamed lack of parliamentary guidance forcing judges to rely on strict European law in their judgements. A spokesman for the Prime Minister welcomed the Neuberger report, stating that "We think this is a very useful report and it is something we will be considering very carefully." On 23 May 2011, speaking on ITV's Daybreak the Prime Minister stated that the law should be reviewed to "catch up with how people consume media today" and that the situation was "unsustainable". Ed Miliband, the leader of the opposition, commented that the law was "not working" and a review would be required.