Lord Judge said he believed that ways would be found to curtail the 'misuse of modern technology'.
Photograph: Jonathan Hordle/Rex Features
Photograph: Jonathan Hordle/Rex Features
Lord Judge: People who defy legal restrictions and 'peddle lies' over the internet should have to pay damages
Modern technology is totally out of control, the lord chief justice has warned in a call for action to be taken against those who defy court injunctions and "peddle lies" on social media and websites. Lord Judge welcomed a report by an influential judicial committee on privacy orders that called for superinjunctions to be granted only in "very limited circumstances" and normally for short periods of time. But he admitted that many bloggers and sites such as Twitter were publishing information that traditional newspapers and television stations were prevented from revealing by court orders.
There is no mention in the report of the impact of Twitter or the internet on the enforcement of court orders, but the lord chief justice said readers placed greater trust in the contents of traditional media than in those "who peddle lies" on websites. 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. The names of those people who had taken out anonymity orders have been circulating, sometimes inaccurately, on Twitter. "Anybody can put anything on [such sites]," he said.
Lord Judge said he believed that ways would be found to curtail the "misuse of modern technology" in the same way that those involved with online child pornography were pursued by the police. "Are you really going to say that someone who has a true claim for protection perfectly well made has to be at the mercy of modern technology?" he asked. "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."
In a report that repeatedly stresses the importance of "open justice", the study headed by the master of the rolls, Lord Neuberger, proposes giving the media advance notice of applications for gagging orders. Dismissing allegations that judges have been creating new laws beyond the authority of parliament, the committee on superinjunctions nonetheless states that "there was justifiable concern [last year] ... that superinjunctions were being applied for, and granted, far too readily". The report also says that media reports of comments made in parliament which set out to contravene injunctions may be in contempt of court. Reports of statements in the Commons and Lords are protected by parliamentary privilege only if they are published "in good faith and without malice".
Addressing the media at the royal courts of justice in central London, the lord chief justice: "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 whether it's a good idea for our lawmakers to be flouting a court order just because they disagree with a court order or they disagree with the privacy law created by parliament." On Thursday the Liberal Democrat Lord Stoneham of Droxford asked a question in the Lords revealing details of an injunction obtained by the former Royal Bank of Scotland boss Sir Fred Goodwin preventing coverage of details of his private life – which later led to the order being part-lifted.
Lord Judge said senior judges would be holding talks with the speakers of the Commons and the Lords over the issue. "It will take quite an effort for parliament to get a grip on this," he said. The study will be scrutinised carefully by ministers, who have sent out mixed signals about whether they believe a privacy law needs to be introduced to provide clearer guidance for judges. David Cameron's official spokesman said the government would consider Lord Neuberger's report before deciding whether to legislate on privacy issues. The spokesman told reporters at a regular daily briefing: "We think it is important to find the right balance between individual rights of privacy on the one hand and the right to freedom of expression on the other. We think this is a very useful report and it is something we will be considering very carefully."
While no one knows the precise number of privacy injunctions in circulation, the committee says it is only aware of two genuine superinjunctions – those whose existence cannot even be revealed – having been granted since January 2010. One was set aside on appeal and the other was in force for only seven days. "The principle of open justice is a fundamental constitutional principle," the report states, "although it is not an absolute principle. It applies to interim injunction applications as it does to trials. "... As they incorporate derogations from the principle of open justice, superinjunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent."
The report sets out draft guidance on how applications should be processed in future, allowing third parties, including the media, to take part in, or lodge objections to, privacy proceedings. It is hoped the presence of other parties in such complex cases will provide reassurance that the cause of justice is being served and that the law is not being exploited by the wealthy to close down debate about matters of public interest. It is acknowledged that new legal procedures will be required to ensure that those who attend such hearings do not divulge details until they are reportable. "It will be a very rare case where advance notice of such applications to media organisations, which are likely to be affected by any order, can justifiably be withheld."
Lord Neuberger, who is the head of the civil judiciary, said: "Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. "However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And where it is ordered, the facts of the case and the reason for the secrecy should be explained, as far as possible, in an openly available judgment." In a clear rebuff to politicians who have accused judges of inventing novel legal precedents without reference to parliament, Lord Judge welcomed the report and observed: "Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by parliament [through enactment of the 1998 Human Rights Act].
"Now that they have been created, judges cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by parliament – including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights ... of freedom of expression. "The relationship between parliament and the courts has, for generations, been predicated on mutual understanding and respect. Judges have never asserted, and they are not now asserting, any authority or jurisdiction over parliamentary proceedings or debate, which are exclusively matters for parliament."
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