ICE blogs

October 22, 2009

Freedom of expression under threat from ’super-injunctions’

Filed under: Blogroll, ethical space editors blog, Headlines, journalism, human rights — news_editor @ 6:05 pm

Legal expert Barry Turner argues that the recent spate of ’super-injunctions’ are unlawful since they are contemptuous of parliament and in breach of the European Convention on Human Rights

The media has in recent weeks complained of a use of injunctions not only to prevent publication of controversial stories but to stifle the very discussion of the injunction itself.

Applications made to the courts by zealous and perceived powerful defamation and ‘privacy’ lawyers have been granted by judges who seem to have forgotten the very nature of the relationship between the press and the courts and who have, more disturbingly, forgotten that an injunction is an equitable remedy and not a legal right.

The recent action against the Guardian to stifle reports about the oil company, Trafigura, and the dumping of toxic waste in the Ivory Coast in 2006, went well beyond any idea of protecting the applicant’s privacy and equitable interests. The lawyers for the claimant, Carter-Ruck, were not only seeking to prevent adverse commentaries on the company’s activities but sought to injunct any kind of debate about it in parliament.

The injunction is a well-established and commonly used legal tool to prevent an individual suffering a wrong and to prevent a wrongdoer from evading responsibilities. Properly used in the spirit of the English legal system’s concept of equity, it is a remedy to be applauded. When used in less than good faith it represents a fundamental threat to freedom of expression that should not be tolerated in a pluralist democracy.

The injunction is an equitable remedy. Equity is a cornerstone of English law enabling judges to apply the law in a fair and ‘equitable’ manner. It is a centuries-old tradition that has served those who seek redress in the courts well. The reason it is such an invaluable tool is because it is discretionary and need not slavishly follow the more rigid legal rules that apply in our legal system. The ’super-injunction’, which aims to stifle entire debate, is in clear violation of the spirit of equity and of judicial discretion.

A judge granting a ’super-injunction’ is, in fact, breaking the rules of equity themselves. The House of Lords - in American Cyanamid v Ethicon 1975 - made clear that the injunction, as an equitable remedy, can only be used when there is a cause of action, a triable case. In another pivotal decision on injunctions, the Master of the Rolls from 1982 to 1992, Sir John Donaldson, declared that the court may disregard fanciful claims. A claim that a national newspaper may not discuss questions in parliament regarding an injunction is about as fanciful as it gets.

The rules of equity in the main mitigate against the granting of injunctions. Great drafts of the common law on both equity and freedom of expression urge caution on judges before granting an injunction. The ’super-injunction’ is an invention of imaginative lawyers and judges who have forgotten the very basics of the law of equity.

‘Super-injunctions’ defy legal maxims enshrined since time immemorial (natural justice). Super injunctions deny the supremacy of parliament. They deny the authority of statute and treaty (the European Convention on Human Rights, Article10; the Human Rights Act 1998 Section.12); they defy absolute privilege; they abuse the purpose of the sub judice rule. They are unlawful!

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