Neuberger report: Media should receive advance notice of superinjunctions

The media should be informed in advance of applications for injunctions and superinjunctions, the master of the rolls recommended in a report published today.

The report from Lord Neuberger, who is the most senior civil judge in England and Wales, follows a year-long inquiry by a committee of judges and lawyers.

Neuberger's report states that advance notice of injunctions should be given to "respondents and non-parties, including media organisations, whom the applicant intends to bring within the terms of the order".

The report goes on to recommend that journalists should be allowed into court to observe when applications for privacy injunctions are made, even if they are restricted from reporting on them.

The 112-page document warns that coverage of comments in the Commons and Lords are not necessarily protected by qualified privilege, especially where they "intentionally had the effect of frustrating a court order".

"Qualified privilege arises where such a summary is published in good faith and without malice. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice.

"Where media reporting of parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order."

The warning will be seen in the light of comments made in the House of Lords yesterday by Lord Stoneham, who aired details of a superinjunction obtained by former RBS chief Sir Fred Goodwin under his parliamentary privilege.

Stoneham's comments, which related to an alleged extra-marital affair between Goodwin and a senior RBS colleague, were widely reported yesterday. They were followed by a high court application from Sun publisher News Group Newspapers to have Goodwin's anonymity lifted with regard to the alleged affair.

The application was granted by Mr Justice Tugendhat, who varied the order to allow the publication of Goodwin's name.

Press Complaints Commission director Stephen Abell welcomed today's report: "The purpose of this report was to improve the process around superinjunctions, and it should, therefore, be welcomed.

"The protection of people’s privacy, without compromising freedom of expression, is at the heart of the work of the Press Complaints Commission. 

"It should not be lost that all of our pre-publication activity is already conducted with the agreement of both sides of the dispute, and is therefore handled privately, but not secretly. Justice in secret is what rightly causes concern."

Index on Censorship editor Jo Glanville said Neuberger’s recommendations would "bring much needed clarity to the use of injunctions".

"There has been a widespread perception that the courts have increasingly undermined open justice and free speech in favour of privacy.

"The proposals in this report will go some way towards correcting the imbalance by providing clear guidelines, reaffirming the fundamental principles of open justice and freedom of expression, and offering for the first time a mechanism for monitoring the use of injunctions."

A spokesman for David Cameron said: "We think it is important to find the right balance between individual rights of privacy on the one hand and the right to freedom of expression on the other.

"We think this is a very useful report and it is something we will be considering very carefully."

Image by AberCJ on Flickr. Some rights reserved.

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