Campaigning journalism is still journalism: Global Witness and s.32 DPA

December 23rd, 2014 by Peter Lockley

In an important development in the on-going saga of Steinmetz and others v Global Witness, the ICO has decided that the campaigning NGO is able to rely on the ‘journalism’ exemption under s.32 of the Data Protection Act 1998 (DPA).

The decision has major implications for journalists working both within and outside the mainstream media, not least because it makes clear that those engaged in campaigning journalism can potentially pray in aid the s. 32 exemption. Importantly, it also confirms that the Article 10 right to freedom of expression remains a significant right within the data protection field, notwithstanding recent developments, including Leveson and Google Spain, which have tended to place privacy rights centre-stage (Panopticons passim, maybe even ad nauseam).

Loyal readers will be familiar with the background to the Global Witness case, for which see original post by Jason Coppel QC.

In brief: Global Witness is an NGO which reports and campaigns on natural resource related corruption around the world. Global Witness is one of a number of organisations which has been reporting on allegations that a particular company, BSG Resources Ltd (“BSGR”), secured a major mining concession in Guinea through corrupt means. A number of individuals who are all in some way connected with BSGR (including Benny Steinmetz, reported to be its founder) brought claims against Global Witness under the DPA. The claims included a claim under s. 7 (failure to respond to subject access requests); s. 10 (obligation to cease processing in response to a damage and distress notification); s. 13 (claim for compensation for breach of the data protection principles) and s. 14 (claim for rectification of inaccurate data). Significantly, Mr Steinmetz alleged, amongst other things, that because he was personally so closely connected to BSGR, any information about BSGR amounted to his own personal data. If successful, the claims would have the effect of preventing Global Witness from investigating or publishing further reports on the Guinea corruption controversy.

Global Witness’s primary line of defence in the High Court proceedings was that all of the claims were misconceived because it was protected by the ‘journalism’ exemption provided for by s. 32 of the DPA. After a procedural spat in March (Panopticon report here), Global Witness’s application for a stay of the claims under s. 32(4) DPA was allowed by the High Court. The matter was then passed to the ICO for a possible determination under s.45 DPA. (In summary, such a determination will be made if the ICO concludes, against the data controller, either: (a) that the data controller is not processing the personal data only for the purposes of journalism or (b) it is not processing the data with a view to future publication of journalistic material).

In fact, the ICO declined to make a determination under s. 45. Moreover, he decided that, with respect to the subject access requests made by the claimants, Global Witness had been entitled to rely on the exemption afforded under s. 32. With respect to the latter conclusion, the ICO held that there were four questions which fell to be considered:

(1) whether the personal data is processed only for journalism, art or literature (s.32(1))

When dealing with this question, the ICO referred to his recent guidance Data Protection and journalism: a guide for the media, in which he accepted that non-media organisations could rely on the s.32 exemption, provided that the specific data in question were processed solely with a view to publishing information, opinions or ideas for general public consumption (p.30). He went on to conclude that this requirement could be met even where the publication is part of a wider campaign, provided that the data is not also used directly for the organisation’s other purposes (e.g. research or selling services). The ICO was satisfied that this condition was met for the data in question.

(2) whether that processing is taking place with a view to publication of some material (s.32(1)(a))

It is apparent from the decision letter that Global Witness was able to point to articles it had already published on the Simandou controversy, and since the controversy was on-going, to show it intended to publish more such articles. The ICO was satisfied that, in the circumstances, this second question should be answered in the affirmative.

(3) whether the data controller has a reasonable belief that publication is in the public interest (s.32(1)(b))

The ICO emphasised that the question he had to ask himself was not whether, judged objectively, the publication was in the public interest, but rather whether Global Witness reasonably believed publication was in the public interest. In the circumstances of this case – small NGO shines a spotlight on activities of large multinational in one of the world’s poorest countries amid allegations of serious corruption – he readily accepted that Global Witness held such a belief, particularly as the data related to the data subjects’ professional activities, for which they in any event had a lower expectation of privacy than in relation to their private lives.

(4) whether the data controller has a reasonable belief that compliance is incompatible with journalism. (s.32(1)(c))

Again, the focus here was on Global Witness’ reasonable beliefs. The ICO accepted that Global Witness had reasonable concerns that complying with the subject access requests which had been made by the claimants would prejudice its journalistic activity in two ways:, first, by giving the data subjects advance warning of the nature and direction of Global Witness’ investigations, which could be used to thwarting effect and, second, by creating an environment in which the organisation’s sources might lose confidence in Global Witness’ ability to protect their identities.

The decision will no doubt substantially reassure campaigning and investigative journalists everywhere. Unsurprisingly, it has been widely reported in the media (see e.g. Guardian article, Times article and FT article here). Notably, the FT reports that the claimants are asserting that they intend to challenge the decision. We will have to wait until the New Year to discover whether these assertions translate into action and, if they do translate into action, what form that action will take.

Anya Proops of 11KBW acts for Global Witness.

Peter Lockley


Article 8 and enhanced criminal record certificates

April 30th, 2013 by Rachel Kamm

There have been a number of Panopticon posts about the lawfulness of disclosures in enhanced criminal record certificates. The latest decision is that of Mr Justice Stuart-Smith in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin).

The principles are now well established. In R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 the Supreme Court identified that s.113B (4) of the Police Act 1997 requires that information can only be included in an enhanced criminal record certificate if, in the Chief Officer’s opinion, the information might be relevant and ought to be included in the certificate. Where it is alleged that disclosure would breach an individual’s rights under Article 8 ECHR, the Court must take into account up to date information to reach its own judgment (without deference to the Chief Constable) as to whether or not there has been an interference with the applicant’s right to private life and, if such interference has occurred, whether it is lawful.

In this case, the claimant (“L”) was an experienced secondary school teacher aged in his mid-forties. He challenged the Chief Constable of Cumbria Constabulary’s decisions, communicated by letters dated 15 May and 27 July 2012, not to remove contested information from the “other relevant information” section of the claimant’s enhanced criminal record certificates.

The following is an example of the information disclosed to L’s prospective employers:

 “Cumbria Constabulary hold the following information which we believe to be relevant to the application of L  …. The information relates to an allegation of inappropriate behaviour towards a female pupil of the school where L was employed as a teacher. Cumbria Constabulary believe this information to be relevant to an employer’s risk and suitability assessment when considering L‟s application for the post of supply teacher with vision for education, working with children and vulnerable adults, because the information, which is considered likely to be true, indicates an abuse by L of the position of trust in which he was placed as a teacher.

The information held by police involves an allegation by an 18- year old female that on 07.05.10, whilst in licensed premises, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 to do so, causing her to feel vulnerable and harassed. The complainant was a pupil at the school where L was employed as a teacher and he had known her since she was 12 or 13 years of age when he was her teacher.

When interviewed by police, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the complainant. No further police action was taken against L in relation to these allegations as the complainant was 18 years of age and therefore no criminal offences had been committed.

After careful consideration, Cumbria Constabulary considers that this information ought to be disclosed as the alleged incident of inappropriate behaviour occurred in relation to a female pupil of the school where L was a teacher at the time. The information is materially relevant to the post of supply teacher applied for in which L will have regular and unsupervised contact with children and young adults. The risks of similar inappropriate behaviour of a sexual nature by L towards vulnerable young persons must, in this instance, outweigh the prejudicial impact that disclosure may have on L‟s private life and employment prospects as a teacher.”

Mr Justice Stuart-Smith held that the Chief Constable was obliged and right to carry out an assessment of reliability, but that he did not have materials available to him that could justify a determination that some form of communication had taken place between the claimant and the pupil. There was ample material upon which the Chief Constable could have reached the conclusion that the pupil’s evidence may well have been reliable, but the real possibility remained that the allegations were without foundation.

Mr Justice Stuart-Smith went on to find that even if the allegations were true, “the risk disclosed by the one episode of which she complained was not shown to be anything other than slight and was a risk to a very limited class of persons in tightly defined circumstances” (namely, current and former pupils whom L might come across in a pub). The incident alleged was itself relatively minor in the overall scheme of sexually inappropriate behaviour and it was an isolated incident in a long career. The incident had not been properly or fully investigated.

Further, the disclosure was made in circumstances where both the General Teaching Council and the Independent Safeguarding Authority had concluded that there was no case to answer. However, the result of the disclosure “had been as severe for L’s employment prospects as if he had been convicted of a serious offence of sexual misconduct and placed on the Sex Offenders’ Register: it is a killer blow and its effects are likely to be long lasting”.

Mr Justice Stuart-Smith concluded that “any proper balancing exercise comes down in favour of the conclusion that this interference with L’s Article 8 rights is disproportionate and unjustifiable, particularly in a jurisdiction where people are generally to be presumed innocent until proved guilty … the defendant has not shown a pressing need for the disclosure, because of the limited circumstances in which a possible risk of repetition might arise and the relative lack of gravity of the alleged conduct. Nor has the defendant shown that the means used to impair L’s rights are no more than necessary to accomplish a legitimate objective”. The disclosures in the enhanced criminal record certificates had breached his Article 8 ECHR rights.

Rachel Kamm, 11KBW


Retention and disclosure of police caution data infringe Article 8

November 14th, 2012 by Charles Bourne

The European Court of Human Rights yesterday handed down a Chamber judgment in M.M. v United Kingdom (Application no. 24029/07) declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR. Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data. 

The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime. 

Until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police. Provisions of the Police Act 1997, introduced in England and Wales in 2006, were applied to Northern Ireland in 2008. Section 113A required a criminal record certificate to be issued on request and payment of a fee, to include details of all cautions and convictions whether spent or not, if the request was for stated purposes including that of assessing the suitability of persons to work with children and vulnerable adults.

Disclosure of the applicant’s caution caused her to be turned down for jobs as a family support worker in the social care field. She complained that the indefinite retention and disclosure of the caution data infringed her ECHR rights.

The Court noted that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1. The question was whether the police records contained data relating to the applicant’s “private life” and, if so, whether there had been an interference with her right to respect for private life. The data was both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 and “personal data” in a special category under the Council of Europe’s Data Protection Convention. Although a person’s criminal record was public information, systematic storing of data in central records made them available for disclosure long after the event. As a conviction or caution receded into the past, it became a part of the person’s private life which had to be respected. The applicant’s voluntary disclosure of the caution to her prospective employer did not deprive her of the protection afforded by the Convention where employers were legally entitled to insist on disclosure. Thus Article 8 applied, and the retention and disclosure of the caution amounted to an interference.

To decide whether the interference could be justified under Article 8 § 2, the Court considered the legislation and policy applicable at the relevant time and since. It highlighted the absence of a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of what in Northern Ireland were originally common law powers of the police to retain and disclose caution data. There was also no mechanism for independent review of a decision to retain or disclose data. The provisions of the Police Act 1997 which came into force in Northern Ireland on 1 April 2008 created some limited filtering arrangements in respect of disclosures. However, in providing for mandatory disclosure under section 113A, no distinction was made on the basis of the nature of the offence, the disposal in the case, the time which had elapsed since the offence or the relevance of the data to the employment sought.

 The Court decided that the cumulative effect of these matters was an insufficiency of safeguards in the system to ensure that data relating to the applicant’s private life had not been, and would not be, disclosed in violation of her right to respect for her private life, and therefore the retention and disclosure of data was not “in accordance with the law” for the purpose of Article 8 § 2. The Court therefore did not go on to determine whether the interference was “necessary in a democratic society” for one of the stated aims, or whether there had been any infringement of Articles 6 and 7.

 Charles Bourne



Police Surveillance – New tribunal decision

June 20th, 2012 by Anya Proops

Earlier this month Robin Hopkins blogged on a recent admin court judgment applying Article 8 to the police’s act of retaining data on a protestor (see his post on the Catt case here). This week the Information Tribunal handed down a judgment concerning another aspect of police surveillance, namely the automatic number-plate recognition (ANPR) system, which is now in widespread use across Great Britain. In Mathieson v IC & Devon & Cornwall Constabulary (EA/2010/0174), Mr Mathieson, a Guardian journalist, requested disclosure from the Constabulary of the location of all the ANPR cameras within the area of the Devon & Cornwall Constabulary. The Constabulary refused disclosure on an application of ss. 24 (national security) and 31 (prevention of crime) FOIA. The Commissioner upheld the Constabulary’s refusal notice on the basis that the location information was exempt from disclosure under s. 31. Mr Mathieson appealed against the Commissioner’s decision.

At the hearing before the Tribunal, it was conceded on behalf of Mr Mathieson that, on all the evidence, both ss. 24 and 31 were engaged in respect of the location information. The key issue which the Tribunal was called upon to determine was whether the public interest balance nonetheless weighed in favour of disclosure. In summary, the Tribunal held that the use of the ANPR system by the Constabulary inevitably gave rise to serious civil liberty concerns. This was not least because the system indiscriminately recorded the number-plate of every single vehicle passing before the individual cameras, irrespective of whether the vehicles may be being used as part of a criminal enterprise or as a result of individuals innocently and lawfully going about their day to day business. However, it nonetheless went on to find that the public interest balance weighed firmly in favour of maintaining the exemptions. This was because, on all the available evidence, it was clear that revealing the location of the individual cameras within Devon and Cornwall would have enhanced the ability of criminals, including terrorists, effectively to bypass the ANPR system, thus helping them to evade detection and prosecution.

In the course of its decision, the Tribunal held that: ‘there is always likely to be a substantial public interest in maintaining the exemptions we are concerned with, in particular that provided by section 24 which relates to national security’ (§8). It also held that, whilst disclosure of the location information may only have tipped the balance slightly in favour of the criminals, not least because they may in any event have been able to identify the cameras through their own efforts, that was sufficient to result in a situation where the location information must be treated as exempt (§10).

Notably, a separate question was raised during the course of the appeal as to whether the information captured by the ANPR system amounted to ‘personal data’ in the hands of the Constabulary. Mr Mathieson and the Commissioner submitted that it did. The Constabulary disputed this conclusion. Ultimately, the Tribunal took the view that it did not need to resolve this dispute for the purposes of determining the appeal.

I am limited in what I can say about this case, having appeared on behalf of the Commissioner. However, it is clear from the judgment that there is an abiding issue as to the legality of the ANPR system and, in particular, whether it unjustifiably interferes with the right to privacy under Article 8 and/or with the data subject’s rights under the DPA. Whilst this is a nettle which the Tribunal itself considered it did not need to grasp in the circumstances of the Mathieson appeal, there can be little doubt but that it is a nettle which will be subject to judicial examination in the future.

Anya Proops



January 11th, 2012 by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm



May 23rd, 2011 by Robin Hopkins

The Committee on Super-injunctions, established in April 2010 in the wake of the Trafigura and Terry cases, was made up largely of judges and practising lawyers, but also included legal representatives from the Guardian and Trinity Mirror. Nonetheless, the media have not received its report, “Super-Injunctions, Anonymised Injunctions and Open Justice” warmly. The Independent has commented on the “absurdity” of the current situation, while the Daily Mail called the report “a chilling exercise in judicial activism, self-delusion and – most worrying – a constitutional attack on Parliamentary sovereignty and free speech”.

Tensions have escalated since the publication of the report on Friday, and reached a head today. Footballer “CTB” (as his injunction order refers to him) has obtained a disclosure order requiring Twitter (based in California) to divulge the names of the “persons unknown” (resident, of course, in jurisdictions unknown) who have referred to his identity in their tweets. Scotland’s Sunday Herald flouted the order of the High Court of England and Wales in publishing the player’s name. This has apparently prompted calls for the Attorney-General to take action against the journalist responsible, a course of action which in the view of SNP leader Alex Salmond would be unwise. Mr Salmond neatly articulated the jurisdictional (and devolutionary) difficulties of this issue, by arguing on this morning’s Today programme that anyone wishing an injunction to be effective in Scotland should apply to a court in Scotland. Fred Goodwin was “outed” in the Lords last week, and John Hemming MP has moments ago outed CTB himself.

And so it goes on. It has been announced in the past few minutes that a joint parliamentary committee will be established to consider privacy law reform. Against this backdrop, I set out a few (rapidly evolving) thoughts on four of the thorny issues raised by the report, the accompanying press conference given by Lords Neuberger and Judge and the general aftermath. On each of these four issues, my sense at the moment is that matters may develop in favour of openness rather than privacy – despite the failure this afternoon to overturn CTB’s injunction.

First though, a synopsis of the report’s thrust and limited terms of reference.

The report: procedure, not substance

As regards its subject matter, the committee distinguished between super-injunctions (where the order states that neither the named applicant’s private information nor the existence of the order can be published), anonymous injunctions (the order does not name the applicant or parties involved) and “so-called hyper-injunctions” (the order prohibits individuals from discussing matters with third parties).

It sees no legal barrier to any of these types of injunction taking effect. It thinks all such injunctions are very rare, but recommends that statistics be maintained on the granting of injunctions so that their prevalence can be monitored.

The report proposes a tidying up of the procedure for obtaining these injunctions. The committee gives a firm “no” to the use of specialist judges to hear these kinds of application. It says that Practice Guidance should be issued, which should include model orders and the process for expediting appeals against the granting of such orders.

Overall, however, the report is not about substantive law reform: that is a matter for parliament. In fact, it is now an urgent matter for parliament. In my view, some of the key issues to be considered are as follows.

Issue 1: media presence at injunction hearings

Parliament’s committee will, like the reporting committee, take Article 10 ECHR very seriously (for a very recent example of Article 10 affecting the interpretation of FOIA, see my post here). The report observes that “it will be a very rare case where advance notice of such an application to media organisations, which are likely to be affected by any order, can be justifiably withheld”. It proposes that the press be allowed to attend application hearings – bound of course by confidentiality agreements and non-disclosure orders. This would allow the media to be properly informed of the matters on which they may not report, and would also equip them to appeal against orders where they deem this appropriate.

This is doubtless a step in the right direction in terms of Article 10. As the committee recognises, however, there are real practical difficulties with the proposal. First, interim injunction hearings are often so rushed that there is no real prospect of a blanket invitation to the media. Secondly, how does one determine who the “media” are who are allowed to attend such hearings? As Lord Judge put it “we know who you [the media attending the release of the report] are, we’re familiar with you, but someone comes along and says, “I’m from the Argyll and Orkney Express” but how do we know? Do we really expect to have cards issued? Can you imagine the bureaucracy?”.

Part of the problem is this: either anyone with an interest in reporting the matter is allowed to attend, or only the “establishment” (this is my term, but seems the sentiment reflected in Lord Judge’s rhetorical question) is allowed, even though the aim is to make everyone subject to the order, establishment or not. The former option exponentially increases the risk of leaks and disclosures on Twitter. The latter option draws distinctions which are impracticable and problematic in terms of Article 10 and fairness in a broader sense. My view is that the former option will prevail, and that we will see a very broad net of media attendees at future super-injunction hearings. This in itself might serve as a deterrent to making such applications in the first place.

Issue 2: Twitter and other “modern technology”

There has been a flexing of judicial muscle as regards Twitter. Though he described “modern technology” as “totally out of control”, Lord Judge took hope from efforts to combat online child pornography. He said this:

“Are were really going to say that someone who has a true claim of privacy, perfect well made, which the media and newspapers can’t report, has to be at the mercy of someone using modern technology? At the moment that may seem to be the case but I am not giving up on the possibility that people who in effect peddle lies about others by using modern technology may one day be brought under control, maybe through damages – very substantial damages – maybe even through injunctions to prevent the peddling of lies”.

The language of “peddling lies” is curious. That is a concept belonging to libel law, rather than privacy. Those seeking super-injunctions tend not to say the underlying material consists of lies, but simply that it is private. The damage lies not in the falsity of the material, but in the fact that people talk about it.

This distinction is important in at least two respects. First, if an applicant wants to prevent people talking about the matter, but many people have already done so (for example, on Twitter), then his or her case for an ongoing injunction is weakened; it begins to look more a matter for damages than for injunctive relief.

Secondly, foreign jurisdictions may be even less cooperative about orders from England and Wales protecting private (but often true) material than they often are about similar orders concerning libel (see for example the United States’ Speech Act of 2010). Countries co-operate against copyright infringement and child pornography because they think it important to do so in a civilised society. They may be less inclined to think that about, say, Andrew Marr’s sex life. In other words, there is a good chance that legal action, whether for injunctive relief or damages, taken in England and Wales against foreign reporters may simply be impotent.

Contrast this likely impotence with measures for after illegal file-sharers through their internet service providers, proposed under the UK’s Digital Economy Act 2010 (on which, see my discussion here in advance of BT’s judicial review of that Act): unlike Twitter, ISPs often have a commercial footing in the UK which they are concerned to protect; international (including EU) legal protection is far more advanced than for copyright than for privacy; even under the Digital Economy Act’s proposal, infringing users are to be given a number of warnings before their details are handed over to those seeking damages, unlike the old Norwich Pharmacal model being utilised in the footballer’s action against Twitter.

Issue 3: granting and maintaining super-injunctions

The report emphasises that super-injunctions are not to be permanent, but should be granted only for very short periods of time. If anyone notices a super-injunction being granted with no return date, they should complain about it, as was done in the Zac Goldsmith/Jemima Kahn case. So far so good: allowing the media to be present for application hearings would help on this front, as would minimising the time between the interim injunction and the return date.

As regards the grounds on which a super-injunction should be granted, the report’s mood music suggests that some may have been granted too readily. It stresses that “in seeking to minimise derogations from the principle of open justice, the committee envisaged that super-injunctions will only be granted in very limited circumstances”. Other than to emphasise exceptionality and Article 10, there is probably little to be said (either by the committee or by parliament) in terms of guidance to judges on granting such injunctions – this is, and will remain, largely a case-by-case business.

The thorny issue of the moment, however, is this: if a matter has been very widely disclosed on Twitter and other websites, is it fair to maintain an injunction the effect of which is to prevent the establishment media from reporting it? If, as I suggested above, the damage comes from people knowing about what you have done, hasn’t the horse bolted in such circumstances? If people wish to reject your job application or shun you at parties, they will probably do so regardless of how they learnt about your indiscretions. Part of what seemed to concern David Cameron in his ITV interview this morning is this prejudicial effect on the establishment as compared with “newer” media, which commentators have described over the weekend as existing in “parallel universes”.

Lords Neuberger and Judge both suggested on Friday that, to the extent that there are differential effects on newspapers as compared to Twitter, that difference is justified. To a degree, they are correct: rightly or wrongly, we tend to expect more noble and sophisticated ethics from mature brands of journalism than we do from little-known blogs, and applicants no doubt suffer incremental damage from the public seeing matters reported in print headlines or on major news websites which they would otherwise have had to seek out on Twitter. There must come a point, however, where the media’s interests (including under Article 10) outweigh this combination of incremental harm and ethical expectation. That too is probably a matter for case-by-case determination, but it is something parliament’s joint committee will surely wish to consider. It may well side with the media over the privacy-seeking individual if forced to give guidance on a hypothetical case.

Issue 4: parliamentary privilege and contempt of court

The constitutional stakes are highest in this strand of the current debate.

The committee was very clear that no super-injunction or any other court order could conceivably restrict or prohibit parliamentary debate or proceedings. It also recognised that, in defamation proceedings, the reproduction of extracts from Hansard attracts attaches to, while honest, fair and accurate reporting of parliamentary proceedings attracts qualified privilege. It is unclear, however, whether the same would apply in contempt proceedings. In fact, “the law relating to Contempt of Court when it comes to reporting what is said in Parliament is astonishingly unclear”, as Lord Neuberger put it. The extent to which parliamentary privilege attaches to conversations between an MP and his or her constituents (some of whom may of course be journalists) is also unclear.

Lord Judge, however, explicitly disapproved of members of either house using parliamentary privilege to circumvent super-injunctions:

“But you do need to think, do you not, whether it’s a good idea for our lawmakers, to be in effect to be flouting a court order just because they disagree with the order or for that matter because they disagree with the law of privacy which parliament has created”.

John Hemming MP clearly takes a different view.

Again, there is much of interest in Lord Judge’s remark, such as the reference to parliament having created the law of privacy, and the implicit distinction between parliament flouting a court order and an individual member doing so. It would be very surprising, however, if parliament’s joint committee were to propose a constrained version of parliamentary privilege. If that committee is robust in defence of the houses’ privileges, the door may be opened to future “outings”, such as that of Fred Goodwin or CTB. Mindful of this, the reporting committee proposed a softer form of control than the restriction of parliamentary privilege. It suggested that:

“House authorities should consider the feasibility of a streamlined system for answering sub judice queries from the Speakers’ offices. Such a communication system will require the creation of a secure database containing details of super-injunctions and anonymised injunctions held by Her Majesty’s Courts and Tribunals Service, which could be easily searchable following any query from the House authorities”.

Parliament’s committee may well endorse this as the approach best suited to preserving a balance of respect (as opposed to contempt) between parliament, the courts, the media and individuals fearful of their privacy being overridden on political platforms.

On this issue, as with so much of the UK’s constitution, the answer may turn out to be a tense but workable network of understandings, rather than hard law. Perhaps this would calm matters only temporarily. But it might also provide breathing room for the public to evolve our expectations about privacy and freedom in both establishment and “modern technology” media, without bringing the latter under any undue “control”.

Robin Hopkins