Injunctions break every rule of good law-making
Judges have created unworkable privacy law - Cameron has reason to be cross
Last month I suggested that, rather than tackle the super-injunction fiasco, politicians of all parties would take the easy option and leave the courts and the press to fight it out. Matters have now reached such a pass, however, that David Cameron must have felt that asking a committee of both Houses to look at the issue, as he did on Monday, was the least he could get away with.
Cameron is sometimes said to be too close to News International, an impression which his comment that it is "not fair" that the press cannot report what is on Twitter will have done little to dispel. But, whatever the truth of that, he has good reason to be cross with the judges for creating a law that is proving so spectacularly unworkable.
To work, any law needs to meet five basic tests. First it needs to appear fair, whereas the current privacy law appears to operate largely for the benefit of rich, male adulterers.
Second, it must be proportionate; using super-injunctions to curb what is essentially gossip hardly ticks that box either.
Third, any legal process should be transparent, yet by definition super-injunctions are secret.
Fourth, any law must be workable; unfortunately the internet and Twitter have rendered this one unworkable.
Finally, a law has to have widespread consent which, as we are seeing at the moment, this one lacks.
This is a pretty impressive list of failings, and the judges can't say they were not warned. In particular they seem to have badly underestimated the effect of two recent American laws which were motivated, in part at least, by concern at decisions of the British courts. One granted immunity to internet service providers for breaches of reputation or privacy. The other prevents British libel or privacy judgments being enforced in the US.
It is quite something when the US Congress feels it necessary to enact legislation to thwart the British courts. Yet their response has been to carry on regardless. Nor have they been much more adept in dealing with domestic challenges. Faced with MPs and Peers using Parliamentary privilege to breach super-injunctions, a report from a committee headed by the Master of the Rolls appeared to suggest, earlier this week, that Parliamentary privilege itself might have to be curbed. Predictably MPs were furious, making a bad situation even worse.
They say that hard cases make bad law. But the irony is that in this instance the cases, nearly all of which seem to be about celebrities cheating on their spouses, have been so trivial. Whether a committee of parliamentarians will be able to produce a workable law from such a muddle must be doubtful. But they can hardly make a worse job of it than the judiciary has. ·
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