Injunction-seekers must usually prior inform media, guidance says

A number of high-profile cases have been reported recently about celebrities' attempts to secure privacy injunctions against media organisations. Judges have had to balance the celebrities' right to privacy against the media's right to freedom of expression when determining whether to grant the injunctions that would prevent publications revealing details the individuals.

The right to privacy and freedom of expression are both fundamental human rights guaranteed under the European Convention on Human Rights (ECHR) and the UK's Human Rights Act.

Lord Neuberger said that the media was entitled to advance notice of applications for privacy injunctions under the human rights laws.

"[The Human Rights Act] applies whenever the court is considering whether to grant relief which might affect the exercise of the [European Convention on Human Rights freedom of expression rights]," Lord Neuberger, Master of the Rolls and head of civil justice, said in a guide on privacy injunctions.

"[Provisions in the Human Rights Act] requires advance notice to be given to persons against whom the application is made, except in ... exceptional circumstances," Lord Neuberger said.

The Human Rights Act says that individuals that apply for injunctions that affect others' freedom of expression rights must take "all practicable steps to notify the respondent" unless there are "compelling reasons" not to do so, in order to qualify for the injunctive relief.

Lord Neuberger said that it would be rare for individuals, "on grounds of either urgency or secrecy", to be justified in not telling media organisations about applications for privacy injunctions.

"It will only be in truly exceptional circumstances that failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order," Lord Neuberger said in his guidance. "Different considerations may however arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, or where, for instance, there are allegations of blackmail".

In Parliament in May Liberal MP John Hemming named Ryan Giggs as holding a court order banning his name being revealed in connection to allegations of an affair. Hemming said he had named Giggs after thousands of Twitter users had used the site to claim he had obtained an order from court preventing his name from being published in association with the allegations.

In June the Attorney General, whose office has the power to bring contempt of court proceedings, said Twitter users that flout court banning orders risk having contempt action taken against them.

In the guidance Lord Neuberger also said that court hearings where privacy injunctions are being sought must be held in public unless it is "strictly necessary".

"There is no general exception to open justice where privacy or confidentiality is in issue," Lord Neuberger said. "Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done".

High Court judges will now have to record details about the number of injunctions they issue under a new pilot scheme (3-page / 38KB PDF) announced by Lord Neuberger.

Among the requirements of the scheme, which runs until 31 July next year, the judges must tell the Ministry of Justice details about individual claims, whether affected parties were given notice of the injunction application and whether attempts were made for the hearings to be held in private.

Information about some injunctions, including those that raise national security issues and relate to children, does not need to be recorded.

In May a committee led by Lord Neuberger had criticised the lack of information about the use of injunctions in report into the increasing use of injunctions and super-injunctions.

Super-injunctions are court orders banning the publication of certain information, and of the reporting of the existence of the ban. In celebrity privacy cases, details are usually issued to the media to inform them of what they cannot report.

Among its other conclusions the Committee on Super-Injunctions report said that journalists who report on Parliamentary debates on subjects covered by court gagging orders could be in contempt of court.