(Originally published on journalism.co.uk October 14th 2009)
In my opinion, the recent controversy over the secret injunction from the High Court of Justice against, among others, The Guardian in connection with the Trafigura case, illustrates not only a problem with British media law as such, but also with how British media react, legally, when faced with such injunctions.
As a foreigner to the intricacies of British national law, I should, of course, be humble, but being a lawyer, one cannot demand much from me in that respect – even if I practice in Norway, under Norwegian jurisdiction.
Injunctions interfering with editorial independence, and in particular those which impose prior constraints on free expression, combined with secrecy orders, denying public scrutiny of the injunction’s substance, do not only have a chilling effect on the free flow of information – they have a freezing effect. Presuming that the legislator does nothing to limit the use of such injunctions, I propose another strategy for British media – with a view to turning the table, creating a reverse chilling (or, even, freezing) effect on injunctions as a viable remedy for those who seek judiciary assistance in strangling public debate. (If you are a British prosecutor or judge, please read no further, as you might want to hold me liable for contempt of court in Britain…)
Although our jurisdictions may represent variations in both procedural and material law – also with regard to the media – the European Convention on Human Rights (ECHR) Article 10 and its protection of freedom of expression applies equally. This fact is, of course, apparent and well known also to the British legal system, its institutions, actors and subjects – and more recent jurisprudence from British courts shows clear signs of development in this area. Therefore, some transferability of experience between jurisdictions could be of relevance.
I have represented the Norwegian Broadcasting Corporation (NRK) in numerous press freedom cases over the past 10 years, and, starting in 2005, I represented NRK and its Chief Editor in what became a landmark case regarding injunctions against the media prior to publication. Until then, such injunctions were, if not frequent, quite common. A brief summary of the case and its proceedings is as follows:
NRK was in the process of finalizing a critical documentary regarding the use of questionable – partly illegal – police methods in the investigation of an ongoing criminal case (armed robbery/organized crime). An essential element was the use of a civilian (himself a criminal, under pending charges for separate crimes) as an informant/agent. In accordance with normal, ethical journalistic procedures, both the said informant and his “employer”, the police, were confronted with the allegations/facts, for possible comment prior to publication. This resulted, first, in the police putting pressure on NRK’s editors to not broadcast – arguing that it would put the informant’s life at serious risk. Shortly after, the informant himself applied to the court for an injunction banning the broadcasting of the program – arguing that publication would put his life in jeopardy (re ECHR Article 2). The court of first instance found in favour of the applicant on basically those grounds, and issued a secret court order banning NRK from publishing. The order also banned the parties and their representatives from commenting publicly on the substance of the case.
The available remedy for NRK under procedural law was, of course, to appeal to a court of higher instance, if necessary to the Supreme Court of Norway, a process which could take months. In the meanwhile, the injunction is to be respected – even if one disagrees with its legal substance. To violate such a court order is a criminal act. NRKs Chief Editor, however, found this situation incompatible with his duty to inform the public of the details contained in the documentary, which included information that might have direct consequences for the fair trial of the indicted persons in the pending criminal case. He, therefore, decided to disregard, violate, the injunction the very next day.
The Chief Editor was subsequently indicted for violating a court order. As his defense counsel, I argued mainly that a) the order which he had violated was itself a violation of his and the public’s rights under ECHR Article 10, and b) that therefore, it would be yet a violation of ECHR Article 10 to punish him for having exercised these protected rights.
As I am certain is the case under British law as well, the problem with this line of argument was that according to Norwegian law it should be of no relevance whatsoever in such a criminal proceeding, to question whether the injunction which was violated was materially correct. As long as an injunction is formally valid, it is to be respected until otherwise decided by a competent court. Therefore, according to existing law at the time, as well as in the opinion of most lawyers, the editor’s defense was a “lost case” – and merely a case of arrogant civil disobedience from the press.
However, to make a short version of long and complex process, the defense proved to be successful. Relying on ECHR Article 10 and, importantly, Article 13 (which secures the right to an effective remedy for arguable claims of ECHR violations), the Supreme Court of Norway, in a procedural decision, held that if there is a possibility that the injunction in question did constitute a violation of ECHR Article 10, the courts must review and conclude on that question before commencing the criminal proceedings regarding the violation of the injunction, because this could very well be decisive as to the question of conviction of the editor. In the subsequent civil process on the question of whether the original injunction did violate ECHR Article 10, the Supreme Court found in favour of NRK. The decision also contained more general statements to the effect that such injunctions, gagging the press from publishing critical reports/documentaries, as a main rule are incompatible with freedom of expression, and should only be envisaged in exceptional cases where for instance an individual’s life would be put at immediate risk and the state has no other feasible means of securing it. The legality of published material should be reviewed in hindsight, in its full context and with public participation – and especially not behind closed doors at the discretion of a judge and in a decision which is held secret.
After these two decisions from the Supreme Court, the State Prosecutor decided to withdraw the indictment against the editor, with reference, inter alia, to statements in those rulings, showing that a conviction was now less likely…
Since then (2007), injunctions against the press are in practice not possible to obtain. To my knowledge no later attempts have been successful, either. Even in cases where the court has found that the publication in question most likely contains untrue, defaming allegations, applications for injunctions have been denied, with reference to the above-mentioned Supreme Court Rulings. So rather than having the courts “saving” them from damnation, Norwegian editors today can truly live by the phrase “publish and be damned”.
Symptomatically, and with reference to the Trafigura case, NRK – who along with the BBC and The Guardian – has been covering it extensively over the past year, felt safe to disregard the same injunction from the High Court of Justice which effectively gagged The Guardian. NRK uploaded all the “forbidden” documents, including the court order, to its website.
If British media wish to operate under a regime which is more compatible with modern European standards of press freedom, is it not about time that one chooses a suitable case, where the injunction-system is challenged along the same line that NRK’s Chief Editor did in 2005? Isn’t it time to focus more on the judiciary’s contempt of basic civil liberties, rather than on potential contempt of court from the media?
Just an idea, no contempt intended.