Rights and wrongs of superinjunctions

Spear’s is in an odd position regarding superinjunctions. As a magazine, we believe in freedom of the press – but our readers may differ.

I’ve been meaning to write this post for a while, particularly since the furore over superinjunctions (whether proper superinjunctions or just anonymised normal injunctions) reached the absurd stage last week of the (alleged) obtainers being named all over Twitter and the foreign press.

Spear’s is in an odd position regarding superinjunctions. As part of the media, of course we believe in freedom of the press: public figures who trade on their private lives should not expect protection when they’ve done something wrong. A footballer, say, who poses with his wife and kids for gossip rags and then has an affair is a hypocrite, and the law is not intended to protect hypocrites.

However, as a magazine for high-net-worths, some of our readers may be interested in obtaining a superinjunction. There is already a great interest in their private lives even before they do anything ‘wrong’ and they can afford to pay law firms the thousands of pounds it takes to get one. (This area of privacy law is notably beyond the reach of most, which is wrong.) They are a recognised protection granted by the courts: it is hardly like they are extrajudicial. Why should one not obtain a superinjunction if you need and can afford it?

Meanwhile, Parliament has sat by and let the courts interpret the law, as created in the Human Rights Act 1998, which put into English law the European Convention on Human Rights. Instead of legislating on privacy, a right which has become exponentially more contentious as the internet’s facilities have raced on, Parliament spent time doing important things, like (eventually) banning foxhunting and reorganising the NHS every couple of years and adding 4,300 crimes to the books since the HRA was passed.

We have seen privacy battles become the new libel, as eloquently put by Peter Preston. The issue of whether someone did or did not do or say something alleged, i.e. the element of truth, is no longer important – a complete defence to libel is justification (truth) – but whether it exposes their private life is key. This means that even true facts of interest to the public (in that they reveal hypocrisy) can be hidden. The bench-developed privacy law can be prayed in aid for what often feel like disreputable causes.

And yet, and yet. We cannot throw the baby out with the court reporter just because some people are taking advantage of the law on privacy. HNWs – and everyone else, for that matter – have a right to privacy which is no less important than the freedom of the press. The problem is that MPs have been too afraid to tackle the subject and set out a clear law which balances the two: the balancing act has been performed by their lordships on the bench, without democratic mandate.

It would be better for everyone if Parliament were to take this matter up and prevent ‘privacy’ becoming a disreputable term by ensuring it protects those in need, not those in flagrante.