In defence of super injunctions

Look out! Here comes totalitarianism. Gor blimey, those super injunctions are an affront to justice and democracy, innit?

How is it remotely acceptable that a judge, sitting in private with lawyers acting on behalf of one side of a dispute, can rule that it is a criminal offence not only to reveal certain information, but also to reveal the existence of the ban on doing so?

That kind of a restriction certainly seems like a sledgehammer relative to the nut of a footballer's desire to keep his "playing away from home" secret LOL titter. "Playing away from home"... aaaahhhh.

Indeed, I started off writing this post thinking just that – that super injunctions are a disgusting abuse of power and process.

But then I changed my mind.

A non-super injunction is intended to "hold the ring" – to prevent a publisher from releasing confidential information until the matter can be argued in full. It is inherently a temporary ban on publication. So they call 'em "interim injunctions".

Plus, Section 12 of the Human Rights Act means that a judge should only give an injunction on request if it is likely to be proven later that the information should not have been released.

Breaking an interim injunction is contempt of court, and is therefore a criminal offence. That's in addition to any civil grief the publisher might subsequently end up in for breach of confidence, libel etc etc.

OK, there are problems even here of Minority Report-style "preventative" judicial action and the insertion of criminal penalties into what is basically civil law (a matter of the specific relationship between two parties, not something that is generally true to everyone).

But, should the press be allowed to ransack someone's reputation or jeopardise national security or whatever just to sell papers? Is there really a right to publish and be damned, or are there legitimate prior restraints on what can be made public?

Well, I've always thought that there are not. Being of a libertarian frame of mind (but not of the teabagging variety, I hasten to add), I generally believe that freedom matters more than other values.

But then you have to consider the repulsive ravenous beast that is the British press.

Imagine that we're not talking about publishing news here – something that can be ennobled with the mantle of "freedom of the press". What the press is doing in the case everyone is talking about right now is causing harm to an individual (and his family) for the amusement of others.

OK, harm to one's reputation is a fairly innocuous kind of harm. And a Premiership footballer being shown up as a serial shagger is hardly likely to lower anyone's opinion of him – because we all assume that's what they do for the rest of the week when they're not kicking a ball or doing coke.

It's all rather playground, isn't it? So let's recast this into the playground. The press is a bully who likes to pull other kids' pants down for a laugh. They do it every playtime, sometimes to the same person, sometimes to someone new – but they can relied upon to do it.

Is it ok to just let them get on with it, assuming that they will behave themselves this time, and punish them only after they've done it?

I'd say it isn't, and therefore some kind of pre-emptive warning to the effect of "if you pull little [insert name of mystery footballer here]'s pants down today, you'll be in big trouble" is legitimate.

That's what an interim injunction does. Section 12 of the HRA is there to encourage judges to bear in mind that occasionally the press is doing a genuine public service by exposing secret information (and the conduct of judges is another topic altogether) – as is the due process of law, conducted in open court, after the event, if the press decides to injunction notwithstandingpublish and be damned.

At the risk of sounding like a whingeing Goldsmith, I think there is a real difference between exposing a real scandal and revealing someone's bedroom antics – between the public interest and what some members of the public find interesting.

If we were talking about, say, the Pope having an affair, that should be published – because that would be a matter of someone not practising in private what they preach in public, and it would compromise his ability to hold that post.

But footballers are just paid to kick balls around. Like it or not, they're not there to be role models or to set a good example. They don't preach anything, so they can't be exposed as hypocrites. A public right to know everything about you is not the generic quid pro quo for being famous.

So exposing this footballer is purely being done for the sake of the public's amusement. And I'd say – reluctantly, I confess – that the distress that would be caused to him and his family is not offset by the amusement we'd all have laughing at him, being appalled by him, preening ourselves at our superiority etc.

Don't let the specifics of this case colour your view of the principles involved. Of course, the only person responsible for the footballer having something to hide – thereby putting his family at risk of this harm – is the man himself for having the affair.

Unquestionably, there is something thoroughly revolting about a rich man hiring out the criminal justice system to prevent someone from exposing his misbehaviour. His wife has a right to know, doesn't she? If she doesn't know now, well, she must be the only person in the world who doesn't.

That's the "injunction" bit. What about the "super" bit?

At first glance it seems horrendously Kafkaesque – to criminalise making a legal ruling public knowledge? How much more totalitarian can you get? See you in the Gulag comrade, I might have just condemned myself to a lifetime's hard labour without even knowing what I did wrong.

In principle, yes.

In practice, horseshit.

If an injunction is legally and ethically acceptable, en-supering it is just a logical extension – because we all know what the press would do. Indeed, even now, aren't we all having much more fun guessing around the "banned" story than to just hearing the honest, tawdry, dull truth of it?

If the press has something that is really in the public interest, they will publish it in breach of the law but probably get away with it. We're lucky to live in a country where that is the case. Just because there isn't a law banning the government from marching us all into death camps doesn't mean there is any greater likelihood of it happening than if there was.

We have to deal with realities and not hypothetical possibilities. The press can't be trusted to differentiate between what matters and what doesn't. Nor can the public. And I should know, because I am sadly part of both - I love to write and to read this kind of thing. That doesn't mean it's right and it certainly doesn't mean it's noble to expose it just because someone wants to conceal it.

The problem with super injunctions, I think, is not the principle, but – once again – the practice.

If I was up to the same thing as the unnamed footballer (which, Elvira, I am not!), I could not afford to protect myself and the Sicilys from the media mincer - something quite different to and not necessarily part and parcel of my family's right to know.

If the press decided to accuse me of robbing my employers by spending time writing blogs when I should be working...errr...I can't afford to defend myself.

The problem is not the law or the judges. It is the inequality of access to justice that put legal redress for harm or threats of harm beyond the reach of the majority.

Apologies for length...