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Why increase in 'super-injunctions' leaves me gagging

Mick Hume, who is the UK's leading authority on freedom of expression, condemns the rise of anonymised court orders and the culture of secrecy here.

Published 01/12/2016

The number of super-injunctions in Northern Ireland has reached record levels
The number of super-injunctions in Northern Ireland has reached record levels

Northern Ireland is super - but not always in a good way. In the bad old days, it was notorious as the home of the "supergrass"; now we learn that the new, more open Northern Ireland is still the last bastion of the "super-injunction" - an extraordinary, retro-legal restriction on freedom of speech and of the Press that has no place in the 21st century.

Through an Assembly question to the Justice Minister, South Down UUP MLA Harold McKee has established that the number of ultra-secretive super-injunctions in Northern Ireland has reached a record level.

A bog-standard injunction is a gagging order imposed by a judge, which bans anybody in the court's jurisdiction from reporting a story, or naming the parties involved. A super-injunction goes further and seeks to ban any mention of the fact that such an injunction has been imposed in the first place.

So, we are not only barred from reading, or hearing, certain news stories of which the courts disapprove; we are also barred from learning that the courts have covered our eyes and ears. Super-injunctions sound like something that belong in an old dystopian novel by Franz Kakfa, or George Orwell, rather than a modern, civilised society.

Super-injunctions are so extraordinary and unwieldy that even the normally ban-happy London courts effectively banished them five years ago.

The collapse of a series of injunctions and super-injunctions, involving the likes of footballers John Terry and Ryan Giggs and TV celebrity Jeremy Clarkson, apparently helped to persuade the courts in London that such blanket bans were unsustainable in the age of the internet and social media. However, it appears that Northern Ireland's courts are now enforcing more super-injunctions than ever.

Last April, the TUV leader, Jim Allister, established that there were five super-injunctions in place. Now Harold McKee has revealed, via that question to the Justice Minister, that there are six.

Not all of Northern Ireland's super-injunctions are remnants from the old regime. One live order has been in place since 2009.

But a fresh super-injunction was granted in 2015 and another one just this year. Three other orders have apparently been discharged at some point since 2007 and are no longer in force.

That is all we are allowed to know. Super-injunctions are such a comprehensive form of censorship that the elected Assembly is not even allowed to be told the dates on which the anonymised gagging orders were imposed, or discharged.

In my opinion, super-injunctions are not only a gross violation of freedom of speech and of the Press. They also represent an assault on the principle of equality before the law.

As Harold McKee says: "These figures would suggest that there are still individuals in Northern Ireland who may be using archaic injunction orders to shield themselves from scrutiny or public comment. The expense of applying for and securing these legal protections can be enormous and, as such, it is often a route only open to a privileged few."

Anybody else with a freedom-loving bone in their bodies should surely want to see the back of these not-so-super gagging orders.

Mr McKee linked the continuation of super-injunctions in Northern Ireland to the Executive's refusal to adopt the liberalising reforms to the defamation laws introduced across the rest of the UK.

"These latest figures of super-injunctions will further compound the pressure on the DUP," said the UUP Assemblyman, "to explain why exactly they are so determined not to allow freedom of speech in Northern Ireland by desperately clinging to the laws of the past."

Northern Ireland's outdated defamation laws certainly need changing.

But as a London-based journalist and author, my advice is: be careful what you wish for when looking in our direction. First, because the UK's reformed libel laws are still a disgrace to democracy. That's why they are publicly admired by President-elect Donald Trump, who would love to ditch the US First Amendment (which protects freedom of speech and of the Press), bring in London-style libel laws and sue his critics into silence.

Second, because, while the UK's highest courts might have ditched super-injunctions, they are developing a new enthusiasm for far-reaching privacy injunctions that protect the rich and influential from public criticism.

The legal basis for these is not libel law, but the 1998 Human Rights Act. This might offer some clues as to the future direction of Northern Ireland law.

There was the recent case of "PJS", the married celebrity, whose extra-marital sexual antics were reported everywhere from Scotland to Communist China, but could not be mentioned in the English and Welsh Press - thanks to an injunction upheld by the Supreme Court.

Now the London High Court has imposed another injunction, banning UK newspapers from reporting the fact that a "very wealthy" businessman has been questioned under caution by police investigating serious financial crimes.

Nobody doubts that the story is true. Yet the businessman - known only as "ERY" - still persuaded the judge that his right to privacy should outweigh the right to report a true story of obvious public interest.

Can anybody imagine a petty burglary suspect enjoying the same sort of privileged access to a gagging order?

As noted by Private Eye, a satirical magazine with extensive experience of the vagaries of UK law, it's an example of "how privacy precedents set over trivialities committed by rich celebrities can extend into considerably more dubious territory".

In both of these cases, the courts' reason for granting the gagging order was that the applicants had children, who could be damaged by adverse publicity. This amounts to using families as human shields for an attack on Press freedom.

Anybody with children and plenty of cash may now be encouraged to apply to the courts to suppress true stories that they do not like.

The courts then assume the role of parents to the general public, deciding what news is fit for the eyes and ears of us.

From Belfast to London, the underlying problem is interference with the public's right to know and free speech.

One consequence of the reforms to UK law has been to banish juries, as representatives of public opinion, from libel and civil trials.

Some of us might have hoped that non-jury courts were another regressive legal measure left back in the bad old days.

Mick Hume is the author of Trigger Warning: Is The Fear Of Being Offensive Killing Free Speech? A new, concise edition is published by Williams Collins, £6.99

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