Two developments overnight have refocused British attention on the problem of super injunctions.

Last week Crikey revealed the British financier behind the latest, and highly novel, form of super injunction in the UK, used in a libel trial to prevent disclosure of the financier’s identity — Mr ZAM for legal purposes — and issues relating to a financial dispute within the Lumley family, which had hundreds of millions of pounds sterling in an offshore trust fund. Most of the Lumley family’s wealth is from an insurance business purchased by Australia’s Wesfarmers in 2003. The libel trial centres on unevidenced claims of financial impropriety and s-x offences, and the injunction extends beyond the respondents in the case to anyone in the UK.

Since then, the financier’s identity has circulated on the internet, primarily because a blog containing materials associated with the case appeared online within hours of the injunction being granted in early March.

On the weekend, the Sunday Times editorialised strongly against super injunctions and the injunction in the ZAM case.

The menace of the SUPERINJUNCTION — a gag that has been rendered all the more toxic for the media being prevented from reporting that it even exists — was given a novel and sinister twist this week when a rich financier made British legal history by winning anonymity in a libel case.

The man, who can be identified only as Mr ZAM, claims that he has been defamed, and threatened with blackmail, by two relatives in a row over a multimillion-pound family trust. This state sanctioned secrecy effectively grants anonymity to alleged blackmailers that they would not enjoy had Mr ZAM pursued his case (ZAM v CFW and TFW) in the criminal court.

There was speculation overnight in British legal circles that three newspapers — most likely including The Guardian, which also reported on the case last week, and The Times — will combine to fight the Mr ZAM injunction. A key problem for media outlets, and the likely rationale for news outlets combining in order to fight this one, is the potentially exorbitant cost of fighting injunctions for what are, in the end, often otherwise unremarkable stories primarily noteworthy for their potential to embarrass or inconvenience those with deep pockets. The costs order for the Mr ZAM injunction alone was more than £60,000.

Also overnight, British Liberal Democrat MP John Hemming, who in March revealed that British banker Sir Fred Goodwin had obtained a super injunction to prevent the press from describing him as a “banker”, announced his intention to refer four “hyper injunctions” to the House of Commons Standards and Privileges Committee.

“Hyper injunctions” go beyond super injunctions and prevent the respondent from discussing the case with anyone, including an MP, who can take advantage of parliamentary privilege, as Hemming did, to breach the injunction with impunity. Hemming has identified four cases where respondents were prevented from talking to anyone, including a case where an individual was specifically injuncted from talking to him about it.

One of the cases involves the Danish company Hempel, which the whistleblower site Cryptome revealed details of a fortnight ago. Like the Mr ZAM injunction, Hempel cannot be identified in relation to that case, involving poisoned drinking water on ships, in the UK.

Hemming’s reference raises the extraordinary possibility that the three judges in the four cases he has referred being jailed for contempt of Parliament. “I do not expect the House of Commons to imprison the judges”,  Hemming said in a media statement, “but it is important that the House acts to protect citizens today … Parliament needs to make a stand to say that it refuses to be deafened or blinded.”

However, Hemming doesn’t share the British’s media outrage about the Mr ZAM injunction. “I’m not sure this is the case to go the barricades on,” he told Crikey. “There’s a possibility this does involve blackmail. Judge Tugendhat has produced an Article 6-compliant judgment.” (Article 6 is the section of the European Convention on Human Rights applying to trials, including when they’re open and when they’re not).

In Hemming’s view, the wave of super- and hyper-injunction has been driven by the failure of the British Parliament to establish a statutory right to privacy in media law, leaving judges to develop their own law on an ad hoc, case-by-case basis. While some super- and hyper-injunctions involve companies such as Hempel or, famously, Trafigura, they are more often used by celebrities to prevent media intrusion into their lives — notable cases involve Take That’s Howard Donald and John Terry. “The failure of Parliament to have a debate on privacy or develop statutory privacy protections means courts are dealing with allegations in privacy cases themselves.”

There’s an Australian significance to Hemming’s observations. In 2008, the Australian Law Reform Commission recommended a statutory right to privacy in Australia for exactly the reasons discussed by Hemming.

… it is the ALRC’s view that a statutory cause of action is the best way to ensure such protection. It forecloses the possibility of Australian courts adopting an action in breach of confidence as the primary vehicle to protect an individual’s private life from invasion, and alleviates the necessity of judges taking the ‘bold step’ of formulating a new tort and a lengthy period of uncertainty and inconsistency as the courts refine the law in this area.

The Australian media, of course, strongly opposed such a legislated right. But the consequence of leaving it to the courts is plain from the UK example — judicial overreach and far greater censorship of the press than would have ever resulted from a statutory right.

There is no precedent for UK-style superinjunctions yet in Australia, but the same clash between privacy concerns and media irresponsibility (think the Pauline Hanson photos or the outing of David Campbell) may provide one before too long. Several years ago, a Queensland court was willing to give Peter Beattie the protection of injunction against media outlets reporting the basis for the prosecution for blackmail of former minister and Beattie colleague Merri Rose. But a superinjunction would prevent the media even reporting that Beattie had obtained one.

And, as the predominance of celebrities, bankers and large corporations in the list of those seeking super injunctions shows, it also means there’s a privacy law for the rich, and none for anyone else.

Peter Fray

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