A hot topic this month has been ex-Formula One boss Max Mosley’s bid to persuade European judges that the UK media should give people prior notification of stories affecting their privacy.
He wants the European Court of Human Rights to require a new legal obligation to be imposed on the press to contact individuals pre-publication so they can seek an injunction before privacy is lost.
But it is a curious paradox that while the media face demands for a new duty to give notice so that litigants can dash to the High Court for a gagging order, many litigants are not complying with existing legal obligations to give the media prior notification that they are applying for an injunction.
The first that many newspapers and broadcasters know of injunctions is when they slide slyly off the newsroom fax.
Only yesterday, the Leicester Mercury received an injunction of which it had had no prior notice in a family case. The order required the disclosure and delivery-up of certain documents the paper was alleged to have received – about which its actually believes it knows nothing – and to provide a sworn statement about the position.
The injunction also gagged it and “any associated newspaper” from publishing anything that might lead to the identification of two particular children in any context, about whom it believes it knows nothing.
The order was not directed at any individual or corporation but simply at “the Leicester Mercury”, which is not a ‘legal person’ in law, and required the steps to be taken “within 48″ [sic].
At the time of writing, the situation is yet to be clarified but serious questions remain as to whether the local authority that successfully applied for the order had drawn the court’s attention to the prior-notification procedures set out in S.12(2) of the Human Rights Act.
Those procedures have been in force more than a decade, yet litigants and courts often fail to adhere to them. Section 12(2) states that if the relevant media organisation is not represented in court, no gagging order is to be issued unless the court is satisfied that the applicant has taken all practicable steps to notify it or that there are “compelling reasons” why the media should not be notified.
In March 2005, Dame Elizabeth Butler-Sloss, who was then President of the Family Division, saw fit to issue a Practice Direction to try to ensure prior notice was given. She said media lawyers were able to differentiate between private information notified to them for the purpose of injunction hearings and information for editorial use, and it would be “exceptional” for a court to grant an injunction without prior notice to the press.
But this simple law is often overlooked or ignored, undermining press freedom.
In a 2009 case called Re Child X (Residence and Contact – Rights of Media Attendance), media organisations challenged an injunction that had been granted without prior notice. Sir Mark Potter, who was then President of the Family Division, strongly criticised the failure to comply with S.12(2) and the President’s Direction of 2005.
He said: “This is not a position which should occur again.”
Last year, in a civil case in which Doncaster Metropolitan Borough Council had initially obtained a pre-publication gagging order against the BBC without giving it prior notification, Justice Tugendhat refused to extend it.
He said there had been no valid reason for not giving notice to the BBC in accordance with existing law.
A week later, in the well-known privacy case involving Chelsea and England footballer John Terry, Justice Tugendhat evidently felt so dissatisfied with litigants’ repeated failure to give prior notification of injunction applications that he saw fit to include yet more guidance on the correct procedure in his ruling.
For the regional press, a gagging order received out of the blue is as much an affront to their freedom as it is to freedom of national newspapers and broadcasters. But few regional papers can afford the substantial legal fees incurred in challenging and rectifying overbearing orders that have been issued peremptorily without their knowledge.
While the limelight is on Mr Mosley’s drive for new prior notification laws against the media, we should not forget the existing ones that are so often flouted to the detriment of freedom of expression.