Who Needs Human Rights? Part II - The tabloids

The tabloids do not like human rights. "Why?" I hear you ask. Because human rights get in the way of a juicy story. Companies such as Associated Newspapers Ltd (Daily Mail) and Newsgroup Newspapers Ltd (The Sun, The News of the World*) have a strong personal interest in seeing the Human Rights Act abolished. This is because these entities so often find themselves in court and subject to an anonymised injunction, a type of temporary gagging order, over some celebrity's Article 8 rights to privacy and family life which the Human Rights Act protects. It is no surprise then that these publications repeatedly misrepresent such cases, labelling the gag orders "super-injunctions" when they mostly are not. An actual super-injunction, as this type of gag order has been dubbed, is more restrictive than an anonymised injunction as it affects even those who are not party to the injunction. Roy Greenslade credits the Guardian editor Alan Rusbridger for coining the term in reference to that paper's inability to report on the Trafigura affair in September 2009.

With a so-called super-injunction, even reporting of the existence and details of the injunction itself would incur contempt. This is in addition to the facts or allegations that the injunction protects. Despite reports to the contrary, super-injunctions are now extremely rare. Only two have been granted since the landmark John Terry case in January 2010, according to a report by Lord Neuberger published in May 2011. Anonymised injunctions on the other hand, such as that obtained against Imogen Thomas and Newsgroup Newspapers Ltd, are quite common. The overwhelming majority of these cases involve blackmail threats. The report does acknowledge however that prior to Terry, super-injunctions were granted far too frequently, and that in some cases there was little incentive for the claimant to advance the case beyond the interim stage (a problem that has now been rectified by the decision in Terry v Persons Unknown). These super-injunctions are pre-trial interim injunctions that are designed to protect the integrity of the court's processes in cases where it is considered that media reporting of allegedly protected information (private or confidential) would obstruct the administration of justice at the pending trial. In paragraph 2.14 of his report, Neuberger sets out the difference between a super-injunction and an anonymised injunction as follows:

[A super-injunction is] an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).

This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

In paragraph 2.16 of the report, he goes on to say "The inaccurate use of the term super-injunction to refer to anonymised injunctions, has not only led to a false view that super-injunctions are commonplace. It has also given rise to misconceptions as to how long super-injunctions endure. A claim that a superinjunction has been in place for a number of years adds credibility to the fear that a new form of permanently secret justice has arisen. Where, however, the injunction concerned is merely anonymised, and there is no prohibition on dissemination of the existence of the proceedings and order, such a claim is simply misleading."

Indeed! So you see, media companies hate super-injunctions and they want you to hate them too. In order to achieve this aim, they tend to refer to any case that gags them from reporting on a story as a "super-injunction". They tend to talk up the notion of secret courts interfering with open justice, but in reality the requirement from the Terry decision that super-injunctions and anonymised injunctions must generally contain a return date ensures that these orders are subject to review within a reasonable time frame and cannot in practice become permanent.

Turning once again to the Human Rights Act, we note that this is the United Kingdom's native implementation of the European Convention on Human Rights, a treaty which we are party to as an EC member state. The treaty established the European Court of Human Rights, which entitles any person who feels his or her rights have been violated by a state party to the Convention to bring a case before the Court. Judgements of the Court in favour of the claimant are binding on the States concerned, who are obliged to execute them. Having the Human Rights Act in place greatly improves the efficiency of our justice system by giving British judges a tool for applying the Convention jurisprudence to British cases. Without it such cases would have to be appealed to Europe at great expense and delay. It would be quite difficult, if not impossible, for a claimant to be awarded injunctive relief in time to prevent disclosure were it not for the Human Rights Act and the protection it affords to privacy. I believe this to be the single most compelling reason for newspapers to wish to cast the Human Rights Act in a negative light. Adam Wagner, a barrister specialising in human rights law, has published a series a blog posts detailing numerous incidents of mischievous human rights reporting.

The most recent example of HRA misreporting is the so-called "CatFlap" row which I wrote about in Part I. I can give no better example of this than the frankly scum-encrusted publication known as the Daily Mail. This was their lead story yesterday (6th October), claiming that in fact the judgement of which they had obtained a copy showed that Theresa May's statement was correct and Ken Clarke's was incorrect. As Adam Wagner once again demonstrates quite capably, this is complete and utter rubbish. [Oh, and as an aside, isn't it so classy of the Mail to reveal that not only was the Bolivian immigrant in question a shop lifter (though he'd not been charged), but he was also *gasp* gay! Completely irrelevant to the case of course, but sure to plant the right sort of suggestions in the mind of the typical Daily Mail reader.]

So yes, as far as the Mail are concerned (without providing any sources of course) the "Judge DID rule [the] migrant's pet was a reason he shouldn't be deported". The caption under a photo of the Home Secretary reads "Vindicated: Theresa May's comments on a man allowed to stay in Britain because of his cat have been proven correct". And they of course lay the blame with Article 8 and the Human Rights Act even though ultimately these had nothing to do with the decision to grant exceptional leave to remain. It is hard to understand how a mainstream publication can so repeatedly and so deliberately mislead its readers with complete impunity. I suppose that's one of the reasons we've gotten to the point where regulation of the press is looking very likely. But that's not going to help when politicians are also deliberately misleading us about what the Human Rights Act does and does not provide, which I will discuss in Part III.


*now defunct  :)