Senior judges today warned that reports of Parliament which breach injunctions could still be contempt of court.
And in a much anticipated report, they stated that all media who are being made subject to injunctions must be informed beforehand under a confidentiality agreement.
The Neuberger report also noted that real ‘super-injunctions”, those so secret that their existence cannot be reported, are extremely rare. It said that there are only two such privacy injunctions known to be in existence.
On the subject of reporting Parliament the committee, led by Lord Neuberger, the Master of the Rolls, said there was “no judicial decision” on whether a report of material “which intentionally had the effect of frustrating a court order would be in good faith and without malice”. This means that such reports could still be seen as a breach of an injunction and so be a contempt of court.
Super-injunctions and other injunctions “can only be granted when they are strictly necessary”, the judges said. “Where super-injunctions and anonymised injunctions are granted they should be kept under review by the court.”
Lord Neuberger said the law surrounding the issue of privacy injunctions was “astonishingly unclear” which was “very unsatisfactory”.
The Lord Chief Justice Lord Judge said: “No-one, and in particular no judge, doubts that the open administrations of justice is a long-standing, treasured principle of our legal system”.
Noting the effect of the Human Rights Act 1998 – which enshrined in UK law the right to privacy in the European Convention on Human Rights, Lord Judge said: “Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by Parliament. Now that they have been created, judges in this country cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by Parliament.”
Lord Judge also admitted that bloggers and users of social networking sites such as Twitter would not necessarily be covered by injunctions. But he added that the internet had “by no means the same degree of intrusion into privacy as the story being emblazoned on the front pages of newspapers”, which “people trust more”, he said.
He said that society should consider other ways to bring Twitter and other internet sites under control:
“Anybody can put anything on it, modern technology is totally out of control. I’m not giving up on the possibility that people who peddle lies about others through using technology may one day be brought under control, maybe through damages, very substantial damages, maybe even injunctions to stop them peddling lies.”
Lord Judge questioned whether MPs and Lords should be “flouting a court order just because they disagree with a court order or for that matter because they disagree with the law of privacy which Parliament has created”.
Addressing journalists at the Royal Courts of Justice today Lord Judge questioned Parliamentarians who “flout the law” by breaching the terms of injunctions.
“It is, of course, wonderful for you if a Member of Parliament stands up in Parliament and says something which in effect means an order of the court on anonymity is breached.
“But you do need to think, do you not, whether it’s a very good idea for our law makers to be flouting a court order just because they disagree with a court order or for that matter because they disagree with the law of privacy which Parliament has created.
“It’s a very serious issue in my view. There has never been any question, in any of these orders, not in any single one of them, of the court challenging the sovereignty of parliament. That’s not the issue.
“We are following the law, as best we understand it, at the level of the judiciary where the issues have been canvassed. Our constitutional arrangements have been based for centuries on mutual respect.”
He added that senior judges would be holding talks with the speakers of the Commons and the Lords over the issue.