uk press: many courts order double censorship

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http://www.guardian.co.uk/commentisfree/libertycentral/2009/sep/23/gagging-orders-media-injunctions

Sorry, we can't tell you. And we can't tell you that we can't

A Kafkaesque form of media gagging order is becoming a troublingly frequent weapon in the legal battlefield

Afua Hirsch

The Guardian

Wednesday 23 September 2009

The battle against "legalese" – the derogatory name given to incomprehensible legal jargon – has made steady progress since the term was first coined in the early 20th century. Proficiency in Latin is no longer a requirement for law students, and huge swaths of court rules have been rewritten in "plain language".

Yet one uniquely baffling genre of court document continues to grow: a new generation of omnipotent injunctions. Injunctions are a form of court order, usually preventing the recipient from doing something. Imagine you know something important about an individual, "A", which you attempt to publish or communicate to others. You are sued by A in an attempt to keep that information confidential – not altogether an unusual sequence of events.

In the course of the legal proceedings brought by A, you are likely to receive a court order, stating something like "the publication of all information relating to these proceedings is expressly prohibited". If asked by a friend or colleague about the case brought against you by A, you would have to say: "I can't talk about it, I've been injuncted." Frustrating, but not uncommon. A's injunction was probably obtained on the basis that if you were allowed to reveal the information at the heart of the case, it would render the ensuing process pointless.

But then imagine the injunction was more abstract, all-encompassing, and powerful. One that, in addition to prohibiting publication of information, ordered that you "must not use and must not publish or communicate or disclose the information that A has obtained an injunction".

When you had digested the scope of this injunction, you would realise your response to the aforementioned friend or colleague would now be quite different. If they asked you what happened to the case brought against you by A, your response would have to be silence because, first, the injunction prohibits you from disclosing the information you have about A; and second, the injunction prohibits you from disclosing the fact that A has obtained an injunction.

Regrettably, this is not a rare Kafkaesque experiment in civil procedure. It is, in fact, reality in a growing number of cases brought before England and Wales's high court. Of course it is impossible to say just how many of these cases there are. The parties are unable to discuss them, so their existence often passes by unnoticed by a wider audience; and even where the existence of these injunctions does come to the attention of the press, journalists are equally bound by their terms, risking contempt of court should they report them.

There are indications though, that these once rare weapons are becoming a more regular feature of the legal battlefield. Newspapers, though obviously prohibited from reporting the fact of these injunctions, are notified of them nevertheless, with the paradoxical consequence that the claimant's desire for secrecy becomes widely known by everyone in major media outlets. The Guardian, for instance, has been served with at least 12 notices of injunctions that could not be reported so far this year, compared with six in the whole of 2006 and five in 2005.

Lawyers practising in this highly specialised area are alarmed, they say, by the increasing prevalence of these once "highly abnormal" orders. "If the court is dealing with confidential information, it is only right that it isn't put into the public domain as a result of the hearing," one expert in media law told me. "But that is now increasingly being conflated with the idea you need to protect the identity of the claimants."

"The fundamental principle is that all these applications should be dealt with in open court. You can only keep things secret if to do otherwise would render the administration of justice impracticable," he added. "It's hard to see how revealing the identity of the parties falls into that category."

Even in cases where an individual faces the revelation of personal information – think of Lord Browne, chief executive of BP, who applied for an injunction to prevent the fact of his four-year relationship with Jeff Chevalier being published – the principle of open justice emerged victorious. Referring to the parties anonymously is "a course to be avoided unless justice requires it", Mr Justice Eady said in the Browne case, adding that there was no good reason why the parties should not be identified.

More alarming still is the fact that corporations, with motives centred more on their brand and reputation than personal disaster, are invoking these orders, gagging others from saying they have been gagged, let alone whatever they initially wanted to speak out about.

Why are judges agreeing to these orders? Almost unbelievably, in one case a company that had aggressively injuncted its critics then persuaded a judge that, were its behaviour to become publicly known, the company might appear – well – aggressive. The court's response? The mother of all gaggings.