A demeaning epidemic of injunctionitis
Lord Neuberger’s report on the superinjunctions affair is a reminder that the state doesn't trust us to judge what we read.
Perhaps it was part of an ingenious PR plot to raise the profile of a British-based Premier League footballer too long appreciated solely for his work on the pitch. Either way, by attempting to legally prohibit people from talking about his off-the-pitch scoring record with former Big Brother contestant Imogen Thomas, the footballer’s legal team have ensured that that’s the one thing people can’t stop talking about.
This does seem to be the paradoxical result of the current obsession with the spate of injunctions prohibiting the publication of information about someone and, in some cases, even preventing the press from revealing who has obtained the injunction or even, in some other cases, discussing the existence of such a court order. The more the UK judiciary tells us that we are forbidden from saying something - in this case the name of a footballer - then like children told not to swear, we feel like bloody well saying something.
The media, traditionally the recipients of injunctions, have certainly been enjoying making nudge-nudge, wink-wink allusions to the footballer’s identity. On Saturday, even BBC Radio 4’s usually august news programme Today featured a guest getting within ‘just one syllable [of] breaking the footballer superinjunction’, as one journalist put it. In Scotland, the Sunday Herald went beyond syllables and published the footballer’s picture on its frontpage, with a thin black line across his eyes with the word ‘CENSORED’ upon it. According to the Sunday Herald’s editor, the injunction doesn’t apply to Scotland.
If newspapers and broadcasters, like cheeky schoolchildren, have been skirting the edges of injunction breaking, in the online world no such niceties are being observed. On Twitter, Facebook and countless message boards, the alleged identity of the footballer - not to mention the actors, TV stars and politicians with similar injunctions in place - has been revealed over and over again. The footballer’s legal team has threatened to sue Twitter unless the social-networking service reveals the identities of some of its determinedly indiscrete users, a threat that has proved to be somewhat counterproductive. One report reckoned that as a result, the anonymity-seeking footballer was being named up to 900 times per hour a kind of I-am-Spartacus attempt to defy prospective legal action. (They needn’t have worried. California-based Twitter is almost certainly safe from the libel-loving, injunction-happy clutches of British law.)
While the fuck-you impulse of those defying the injunctions is not without its merits, it does seem a bit adolescent. It doesn’t seem defined by a deeply held commitment to free speech so much as a reflex opposition to being told what to do - in this case by a judge. And here we come to the inspiration for this collective raising of two-fingers: a legalistic paternalism in which judges and lawyers are deciding what it is and what it is not appropriate for us to talk about. No wonder the response to this latest round of injunctions, be they in relation to the sex-life of ex-Royal Bank of Scotland boss Fred Goodwin or the sex-life of a now infamous footballer, has been touched by something akin to teenage rebellion. By arrogating to themselves the ability to decide what we ought to be allowed to know and talk about, the judiciary is attempting to treat us like children.
Such an impression was substantiated by the long-awaited report on so-called superinjunctions by the head of England’s civil judiciary, Lord Neuberger. Published on Friday, it was understated in its arrogant assumption that the bewigged brigade knows what’s best for us. It’s ever so difficult, we were told, for judges to balance our ‘freedom of speech’ with our right to ‘privacy and confidentiality’. Yes, things have got a little bit out of hand, but that’s mainly because the media have got overexcited about superinjunctions, the report said. In future, superinjunctions should be issued only in ‘very limited circumstances’.
However, one thing that remained unquestioned by Neuberger was why injunctions - whether hyper, super or calafragalalisticexpialodocious - exist at all. In other words, why should the judiciary decide whether free speech reigns or, because of privacy concerns, has to be suspended? Do we as adults, as citizens, really need to have an unelected body of judges telling us to watch our words?
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And here we come to the nub of the matter. The reason that freedom of expression is currently running up against court-ordered restrictions is what the lord chief justice for England and Wales, Lord Judge, described on Friday as ‘the law of privacy which parliament has created’. That is, the New Labour government’s Human Rights Act, passed in 1998, which incorporated the European Convention on Human Rights (ECHR) into British law and, with it, Article 8: ‘everybody has a right for respect of his private and family life, his home and his correspondence’. So while article 11 asserts the freedom of speech, it doesn’t take an eagle-eyed lawyer to understand that this freedom might run into difficulty if it violates a right for respect of, let’s say, footballer X’s private and family life.
Lord Judge’s irritation at his profession being the object of injunction-flaunting politicians’ ire is perhaps understandable. This current bout of injunctionitis wasn’t born within the pathologically superior environs of the judiciary, it was instigated by the British state’s adoption of the ECHR. The key point here is that freedom has ceased to be something that we enjoy apart from the state; it has become something that we enjoy through the state, in the form of a whole assortment of often contradictory rights. As such, our freedom, reified as a set of rights, has become a state-granted privilege to be withheld and violated as the authorities see fit. This is why the judiciary have become so central - they are tasked with managing and ‘balancing’ the freedom we are deemed incapable of exercising by ourselves. And this is also why there is that impulsive kick against the legal pricks in the instant they are experienced as an absurd check upon our freedom to, in this case, say a footballer’s name.
Given this state-sponsored, judge-fronted regulation of our liberties, in this case the freedom to talk about so-and-so’s sexual adventures with thingamy from Big Brother, it is perhaps unsurprising that social media appears so terrifying to m’luds. As the lord chief justice put it, ‘modern technology is totally out of control’. The focus on technology in the debate about injunctions has always been a little misleading. What Lord Judge actually means is that, online, people are out of the judiciary’s control. It is a statement that tells us less about social media, than it does about the unregulated freedom it symbolises. It’s our freedom to speak our minds online, to negotiate our own relationships, that terrifies the fusty judiciary, not the shiny new technology itself. But instead of trying to seek out ways to regulate Twitter or to come up with some new-fangled privacy law, we should be trying to deregulate the offline world - something that will involve freeing ourselves from the state-shaped aegis of the Human Rights Act.
For those worried that junking the injunction by getting rid of some spurious right to privacy will unleash a gossip-spreading free-for-all, it’s worth remembering that freedom of speech entails taking responsibility for what one says and thinks. It entails exercising judgement. And contrary to what the state clearly believes, the ability to make such mature judgements is not the sole preserve of the judiciary.
Tim Black is senior writer at spiked