But I don’t see how injunctions help here. If you’re crazy enough to take jail to put Carr’s new identity in the public eye, then the fact that you can be superinjuncted and take *more* jail to put Carr’s identity in the public eye doesn’t really make all that much difference.

Someone sufficiently screwed up would consider a jail term or fine to be a fair price to pay to put someone’s address in the public domain. People who have their identities protected upon their release from prison tend to be afforded this (expensive) protection for good reasons. The same reasons why we don’t have the death penalty are the same reasons why such people need to be protected. A consistent argument has to protect that person’s privacy pre-emptively, or not protect it at all.

And let’s just say, purely hypothetically, that there had been a miscarriage of justice, and someone convicted of a heinous crime, and/or demonised by the press, was in fact innocent. And then someone revealed their address. Putting the revealer in prison for contempt would be after the horse had bolted.

It’s not just about libel, either: this might have been in connection with a libel case, or it might be in connection with a personal injury case.

I’m sure there is a case for super-injunctions: there are cases you can imagine in which the mere fact of publishing who you are or that you want an injunction would defeat you right from the start.

Maxine Carr might be one example, Venables and Thomson another. Max Mosley, even, comes into that category, if you think about it – if someone’s proposing to expose your private life unlawfully, the only real way of stopping that – an injunction – is compromised right from the start if everyone knows you got an injunction to stop newspapers publishing something.

You only need to use your imagination to think of other cases: a local authority needing to stop publication of a planned raid on paedophiles might think it also needed to prevent publication of its identity (and therefore location), say; a bank trying to stop publication of allegations that it’s bankrupt, but that would be bankrupted anyway if markets knew it was going for an injunction, even if the injunction were granted. Superinjunctions aren’t automatically as awful or unjustified as all that.

But it can’t be acceptable that they extend to restraining publication of parliamentary proceedings, certainly not routinely, and perhaps ever. I’d be amazed if the judge had consciously made such an order: I suspect Carter-Ruck were trying on an extreme interpretation of the order, and that the result of this affair will be that judges now look for express exclusions to allow parliamentary reporting when superinjunctions are sought.

(does the abuse of Conditional Fee Agreements mean
whether there could be either professional pressure/codes to effectively establish limits to unacceptable practice are; and/or tougher sanctions within the profession and a different threshold on vexatious cases; and/or regulation against some of the charging practices which seem to have fuelled this).

There was some interesting evidence submitted to the Select Committee on Constitutional Affairs relating to this – see this link and look for media organisations e.g. the BBC. The organisations suggest various improvements.

That’s easier said than done in some cases.

Some much needed reforms can be readily expressed in simple principles, such as getting shot of Brunswick and giving ISPs common carrier status, others, even if expressed simply, carry a lot of careful nuances that need to explored in detail.

In particular we have to be careful not to open the door to vested interests who might (and will) see libel reform as a back door means of increasing censorship in certain areas.

At the present time, any wide-ranging review of libel and defamation law will inevitably attract some who will see as a chance to try and sneak blasphemy and the idea that religion can be libelled in through the back door, much as there have been attempts to use the provisions on religious discrimination as back door route to forcing the recognition of certain religious beliefs and practices in law.

In the Eye this all too often ends up as bashing Justice Eady (in the pieces by Cohen, at least), and he’s undoubtedly made some questionable decisions, but personalising the issue to this extent obscures the more serious issue – that it’s the laws themselves that are the problem.

Douglas touches on this, but the libel tourism thing is also awkward, isn’t it… as in, how do we actually reform the laws to stop cases like the one on ‘Funding Terror’ from happening? Sunny has a recent piece that kind of links to this in discussing hosting of blogs etc. It’s all too easy to say ‘look at this, isn’t it absurd’, as is the wont of Private Eye, but the question of ‘place of publication’ is an awkward one, in’t it – you can’t quite elide the issue by saying that if something wasn’t originally published in the UK, the libel laws can’t apply to it, because everyone would just ‘publish elsewhere’ then print what they like.

And unlike a lot of others I think we do still need libel laws – and that going down the US route is entirely the wrong way to go. journalists are hard enough to believe as it is.

Point taken. The motivation for the post was to try to ask how we might move from angry reactions/mobilisations to also constructive pressure. What for is obviously a central question, and perhaps the PEN/Article on Censorship report might help shift the debate that way.

So I would be interested in (1) a debate about what five simple principles for reform might consist of; and (2) what might a reasonable three paragraph description of what constructive reformers might want to see the Labour Party, the Liberal Democrats and the Conservatives put in an election manifesto on this issue … I could see attractions for all of the parties in being seen to engage with the issue if there were sustained constructive as well as reactive pressure. It might particularly appeal to the LibDems, but some of us in the Labour Party would be keen to get on the right side of a civil liberties issue too.

It might be that a commitment to a particular type of inquiry of a modernised form of Royal Commission (eg with public deliberation/citizens jury style input involved) could prove a useful model to thrash out the issues, but it would be good if there were both a commitment to act, and some clear signposts as to what the objectives (more open justice; less expensive)

Various issues arise from points made in this thread and the broader discussion.
1. when the principle of secret justice should or should not apply.
2. the particularly comparatively astronomic cost of defending UK libel cases
(does the abuse of Conditional Fee Agreements mean
whether there could be either professional pressure/codes to effectively establish limits to unacceptable practice are; and/or tougher sanctions within the profession and a different threshold on vexatious cases; and/or regulation against some of the charging practices which seem to have fuelled this).
3. whether the burden of proof is in the right place
4. whether the current approaches to damages is proportionate or not, how those norms are gauged, and how the norm might be shifted if there were a consensus that it is too high either generally in some cases. (For example, the idea of more prominent display of apology/correction but lower cash sums might

Rusbridger told the Convention on Modern Liberty session the cost of defending libel in the UK is 4 times as much as Ireland, and Ireland 10 times worse than the third on the list … with the UK 140 times worse than other/comparable cases ….
Can anyone here source those comparative figures?

In the Press Freedom session at the Convention on Modern Liberty, which Guy linked to earlier
http://www.modernliberty.net/programme/morning-sessions/6-press-freedom

See also, Hislop’s evidence to the Select Committee … where the Judge feels that “It is the most disproportionate piece of litigation I have ever been involved in” and that he is “”absolutely horrified” by the advice given by lawyers apparently to needlessly complicate and increase costs of the case.
http://www.parliament.the-stationery-office.com/pa/cm200506/cmselect/cmconst/754/754we34.htm

http://www.guardian.co.uk/politics/2009/sep/17/lord-strathclyde-end-trafigura-links

The last person you’d want to ask was a libel lawyer.

Three suggestions:

Firstly, that the fees for libel lawyers are reduced to something a tad below defending someone for pissing up a lane.

Secondly, that the maximum remedy should be a finding of innocence and no damages whatsoever. The finding of innocence to be published as prominently as the original calumny.

That we look again at where the common good lies in all of this. For instance, it does not, it seems to me, lie in the rather odd notion that English jurisprudence has, by nature of publication here, a right to assert itself on a global stage. Publication, these days is global, not national and for a huge body of work it is available anywhere on the planet. The concept of being a bystander could reasonably be an allowable defence against any action whatsoever.

it’s clear that the libel laws do need some sort of reform. and this is a good article by someone i admire.

but for god’s sake could SOMEONE writing about this stuff PLEASE offer an idea of what those reforms might actually look like? Private eye, Martin Bright, HP Sauce et al whinge on about the laws but in reading up in all these sources i’ve only seen one instance of someone nailing their ‘reform’ colours to the mast – Nick Cohen, who writes the ratbiter pieces in private eye and who thinks we should copy the American laws verbatim (not that he ever says that in the Eye pieces, natch).

Now, I think that’s a really bad idea, given the state of the US news industry and the extent to which smears dominate political reporting and campaigning over there.

So can anyone else offer any substance on this? can LibCon get a lawyer who specialises in libel (as opposed to what we usually get, corporate solicitors parroting the stuff by nick cohen they’ve read in private eye) to write something on it? We all know that there are a lot of apparently shocking examples. But unless someone actually offers some substance in suggesting changes, nothing is actually going to change.

I’d like to agree with you, I really would.

Is anyone able to determine what Carter Ruck’s injunction actually said? Has anyone the faintest idea of what the withdrawal of the injunction by Carter Ruck actually said?

We know that an injunction was approved.

We have no idea what case was made by Carter Ruck to obtain that injunction.

We do not know which Judge heard it. Or when.

Equally, we have no idea of what the words Carter Ruck used to raise that injunction were, do we?

This is secrecy, and it stinks.

This sounds like an angle worth following.

The schedules for court hearings are public information, and at least partially available online. Surely it would be plausible to (automatically) collect and index that information, and keep an eye on, say, all cases involving the major newspapers?

Presumably there’d be a lot of uninteresting cases to wade through, and you wouldn’t be able to get much information beyond the name of the plaintiff. Also, perhaps injunctions against newspapers are too last-minute to appear on the online court lists?

Start a campaign to get every lawyer and QC that has had anything to do with Carter Ruck stuck off.

I’d allow an appeal, which is somewhat fairer than they seem to attest to, re the Private Eye evidence.

For the reasons outlined in 24.

Having read Sarah Ditums’ analysis I am very impressed with how cleverly this game has been played.

However.

The pressure has got to stay on these super injunctions. I would have thought that, in general, the only case for them is to protect a courts’ authority. Sarah mentions the potential to reveal Maxine Carrs’ new identity. That is a matter for the court that originally decided to hide it. If they were to decide on a super injunction then, perhaps, so be it.

But what we have here is very different from protecting the vulnerable. It is an attempt to bend, and in this instance, (for a few hours), break, natural justice in favour of corporations and their shills (Carter Ruck).

I do not think that corporations have either reputations, despite the PR to the contrary, nor the potential for emotional damage.

As a society, we are being extremely stupid to allow the likes of Carter Ruck the freedom to define the freedom of their clients as our ignorance of whatever befell them. We are not stupid, and secrecy is no answer.

If you go to law, you should be accountable. Your name should be on the docket. You are, by the nature of your grievance, placing yourself in a public arena.

And that is how it should be, ceratinly for multi-nationals, etc.

So why did Guido run the story?

Oh, and he printed the injuncted story too…!

Now, repeat after me….Guido must be ignored, Guido must be ignored, Guido must be ignored….

I think the Guardian played a good game here and got Trafigura and Carter Ruck right where they wanted – while blowing up a huge story that was otherwise unnoticed. Sarah Ditum writes about it here:
http://sarahditum.com/2009/10/13/running-rings-round-carter-ruck/

Of course, this would only work with the Guardian if it was doing a worthy story. Can’t imagine something like this kicking off if an injunction was slapped on to stop reporting on the breakup of a marriage by a Tory PPC…

could somebody explain what the spycatcher case development was on that?

Essential Law for Journalists has a good summary of he case on page 319, but for those that don’t have it here is a quote pertinent to your question:

In June 1986 the Observer and the Guardian newspapers both carried stories reporting the forthcoming hearing in Australia [the attempt by our A-G to restrain publication in Australia - uklberty]. The stories contained brief accounts of some of the allegations. An English court granted the Attorney-General interim injunctions against both newspapers preventing them from disclosing any information obtained by Wright in his capacity as a member of the British security service.

The following year… other newspapers published information from Spycatcher, believing they were not prevented by the injunctions, but the courts held they were guilty of contempt of court.
…
By the time the two papers were free to publish the material legally, the story was history rather than news.

The ECtHR (<a href="judgment here) found that our government had been right to obtain the injunctions but these should not have been maintained once the book had been published.

The affair made a mockery of our government and our legal system – the Streisand Effect took er… effect even in the absence of the Internet (as we know it) let alone Twitter. You could buy the book outside of England and Wales – e.g. in Scotland – or go overseas to buy it and bring it home.

I imagine sales were improved by the attempts to restrain publication and gag reporting. Famously the Economist printed a page in its UK edition that was blank but for the words, “In all but one country, our readers have on this page a review of Spycatcher, a book by an ex-MI5 man, Peter Wright. The exception is Britain, where the book, and comment on it, have been banned. For our 420,000 readers there, this page is blank – and the law is an ass.”

After reading a Dictionary, I agree. The misuse of law by lawyers for vexatious purposes should be a good enough reason to have said lawyers struck off…