Out-Law News 5 min. read
17 May 2011, 1:50 pm
A judge at the Court of Protection has issued an injunction to prevent the identification of people named in a case about a woman with brain injuries. The woman, referred to in the court papers as 'M', may have her "life sustaining" treatment and medical support ended.
"This order prohibits ... the publishing or broadcasting, in any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service, of any information (including any photograph) that is likely to lead to the identification [of people and places referred to in the case]," the court ruling said.
Courts are increasingly being asked to stop newspapers publishing details of people's private lives. Courts must weigh up how to balance the rights to a private and family life and the right to freedom of expression, both of which are guaranteed by the European Convention on Human Rights and the Human Rights Act.
M had been in a "minimally conscious state" since February 2003 when she was admitted to hospital suffering from acute swelling of the brain. Her mother wanted to stop the treatment that is helping to keep her alive and asked for care to provide "the greatest dignity until such time as her life comes to an end," the Court of Protection judgment papers say. A hearing will determine M's future in July.
The judge said that issues were "invariably given sharper focus" by journalists when the media was "free to report the human stories behind the legal issues," but said that in this case the right to privacy of M and her relatives meant he should ban publication of their identities.
"In my judgment, the [rights a person has to a private life] engaged in this case are not only those of M, but also those of W, B and S. On the evidence filed in this case, any publication of the identity of W, B and S, or any attempt by the media to communicate with, or take a photograph of, those three individuals would not only infringe their own ... rights, but also the ... rights of M, since ... it would be likely to reduce the frequency of their visits," the ruling said.
The Court of Protection deals with cases where people lack the capacity to make decisions about themselves. The cases are usually heard in private but following a lobby from media groups last year judges can decide to open the court, with reporting restrictions, for journalists in cases deemed to be in the public interest.
The ruling follows a recent rise to prominence of the issues surrounding court injunctions. Earlier this month an anonymous Twitter user posted information about celebrities' private lives on the site and suggested that the publication of the information was banned by the existence of super-injunctions.
Newspapers reported the leak and revealed the identity of charity fundraiser and human rights campaigner Jemima Khan as among those named on Twitter. The publication of her name, and not others', was evidence that she had not taken out a super-injunction to prevent the story being published, Khan said.
Culture Secretary Jeremy Hunt last week said that technology was making a "mockery" of UK privacy laws.
"We are in this crazy situation where information is available freely online which you are not able to print in newspapers. Whatever the law tries to do on privacy, the internet is a very powerful force that you can't buck so we do need to look at it," Hunt said
Hunt said that the UK needed "to think about the regulatory environment we have," and said he would discuss whether the UK could change the law to reflect the reach of technology.
"We need to get into a situation where regulation and legislation is up to speed with changes in technology and that we get the balance right between the rights of an individual and the rights we all cherish for freedom of expression," Hunt told reporters, according to the Department for Culture, Media and Sport.
Kim Walker, media law expert at Pinsent Masons, the law firm behind OUT-LAW, said last week that contempt of court proceedings could be issued to anyone who posted banned details from court cases on Twitter, but that the procedures to bring someone to account were cumbersome.
"To bring contempt proceedings against the Twitter user a court would need to identify the person. To do this they would usually start by writing to Twitter asking the company to let them have the personal information (assuming Twitter holds it) about who is behind the account," he said. "Twitter would certainly respond that it would require a court order forcing it to hand over the information because of privacy laws that prevent personal data being shared, and also because it is unlikely they would want to be seen to be taking the security and privacy of its user information lightly."
"In the UK an individual would apply to court for a court order called a Norwich Pharmacal Order to require the release of the information. But because Twitter is based in the US a UK court would have no jurisdiction to enforce the order against Twitter," Walker said.
"The UK court would have to write to its US equivalent asking it to impose a request for information. It would then be up to that court whether to issue Twitter with an order to disclose the information," Walker said.
This process is slow and could prove difficult for those behind the super-injunctions to use, which could lead some to question whether super-injunctions can ever fully work, Walker said.
Last week the European Court of Human Rights (ECHR) rejected an argument, brought to the court by former motor racing boss Max Mosley, that said media editors should be forced to tell people when they are about to write stories about their private lives. The judge said it would have a "chilling" affect on journalism and the right to free speech.
A report into super-injunctions is expected to be published later this month by a committee chaired by the Master of the Rolls and will feed the current debate about whether gagging orders are being used as legal tools by the rich to restrict free speech in the interests of their privacy.
Prime Minister David Cameron has admitted to being uneasy at the increasing use of court orders obtained by celebrities to ban media reports about their private life.
Last month BBC journalist Andrew Marr admitted he had used a court order in the past to ban the publication of details of an affair. Marr said he was "embarrassed" at having restricted what journalists could report about him.
Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.
