Intellectual Property Rights | Procedural

THE RISE AND FALL OF SUPER-INJUNCTIONS: PART II

In our last post on the subject ‘The Rise and Fall of Super-Injunctions’, we had covered part I of the Article titled ‘The Rise and Fall of Super-Injunctions: Part I’. The said part contained the concept of super injunction and the origin of the same. The same is accessible here. This part contains issues and conflicts surrounding Super-Injunctions, the present situation, Indian position and Conclusion

CONFLICT BETWEEN PARLIAMENT AND JUDICIARY

A committee chaired by Lord Neubuegar, the master of rolls was set up in April 2010 to examine how and when judges can order anonymity to protect privacy in a so-called “super-injunction”. The committee report[1] took 18 cases into consideration and described that an anonymised order is an injunction which can prevent anyone from publishing information “which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.” He called the law on the parliamentary privilege as astonishingly unclear. However, the report did not change the law. The heavy coverage of the matter made even the Prime Minister David Cameron express his “uneasy” feelings about super-injunctions in a debate and said that judges were developing a privacy law without the Parliament’s say.[2] Super-injunctions heightened the debate of Right to privacy vs. Freedom of speech and expression. It also resulted in the Streisand effect – a psychological reaction in which if people get to know that there is some hidden information they tend to get more motivated to spread and access that particular information.

CONFLICT BETWEEN JOURNALISM AND JUDICIARY

With the advent of technology and social media, it can be said that we all live in a small-connected world, where obtaining a super-injunction clearly draws public attention to the existence of the protected information. The numerous lawsuits on media houses and publications in the name of super-injunctions led to revolt and major dissent from the fourth pillar of the democracy. They claimed that too much power is vested in the hands of judges and they have the right to freedom of speech and expression. The issue of publishing it in public interest made it more complex. Media claimed that there is no infringement of right to privacy instead super-injunctions are used by celebrities to buy silence, hide their darker sides and to protect their dirty laundry getting aired out in public. Naomi Campbell[3] sued “the mirror” for reporting about her drug addiction. This decision was criticized by the press which would be a precursor for celebrities, politicians and others who used similar legal tactics against reporting the truth.

The celebrities claimed that media tends to sensationalise the events for money and TRP and also leak secret information of investigation in the public. They clearly mentioned that their personal life does not come under public interest and there should neither be any privacy invasion nor media trial. The fake news and media trials tend to do a lot of damage to their reputation and professional career. In the Douglas case[4], celebrities and public personalities started asking for more stringent privacy laws under the Human Rights Act 1998 which recognized a right to privacy and the Data Protection Act, 1998 which provides the law to collect, process and store data.

WHAT WEAKENED THE POWERFUL SUPER-INJUNCTIONS?

With the increased access to the internet and beginning of the era of social media, the effectiveness of super-injunctions came into question. In the Trafigura case, twitter played a major role in highlighting the matter among the public and it went on to be said as one of the worst pollution disasters in history. Ryan Giggs, the UK football star sued twitter and numerous social networking website users who sought super-injunction to protect his identity in a celebrity scandal.[5] Modern technology, takes seconds to leak confidential information making super-injunctions useless. Interestingly, the restriction on publication stays to the respective country only and details of the controversial report can be published online using the server outside of these countries i.e. England and Wales. Jeremy Clarkson lifted his own injunction against his ex-wife stating that it does not work.[6] Most importantly, since Member of Parliament could discuss them during the parliamentary proceedings it made them even more ineffective[7]. The publishers claimed that they have the right to report about these anonymised court injunctions proceedings under parliamentary privileges. Major sufferers were the very famous celebrities than the less famous ones as the latter tend to seek less attention. 

DOES INDIA HAVE SUPER-INJUNCTIONS?

In India there is an atmosphere of lack of freedom in media which gives effect to super-injuction in general and consequently it poorly ranks at 142nd position in the Press Freedom Index 2020. Media in most of the cases related to celebrities have to face legal action which mostly involves a large amount of compensation from the billion-dollar business like Anil Ambani to chief minister like Jayalalitha have filed multiple defamation suits seeking whooping amounts as damages against media houses and various publications.

In some cases the court has favored the media houses like in wave of #me-too allegations, a political party candidate Tejasvi Surya, sought injunction against the pre-publication of articles reporting against him, where even though the civil court passed an interim injunction against about forty media houses, it was overturned by the high court stating the “right to know”.[8]

In India, defamation is the most common legal claim used for SLAPP (Strategic lawsuit Against Public Participation) which is basically designed to depress public engagement using the legal system.[9] Gag orders have been used as tool for the genuine protection of privacy of victims and minors which restricts information from being made public or passed onto any unauthorized third party.

On the contrary, in the case of Shashi Tharoor v. Arnab Goswami[10], the judge made a remark that even if a court is inclined to grant injunction, there is need to take care that it does not result in a “gag order” or “super-injunction”. On a different note, the judiciary showed inaction when in a sexual harassment case by an intern against SC judge was not entertained because SC administratively decided not to listen to complaints against former judges. [11] Moreover, the theory of “there cannot be a gag order’’ by media got diluted when right to privacy became the fundamental right under Article 21 of the constitution in the Puttaswamy[12] judgement.

The problem is that unlike the UK, India’s judicial landscape is way wider, that is if one junior judge passes a gag order in one part of the country, the report will have to be removed from across the country which vests huge power in the hands of the judges.

The committee chaired by former Judge of Supreme Court, Hon’ble B. N Saikrishna in 2010 on data protection and privacy was criticized by media and media appealed that the concept of right to privacy against media is vague and India does have well- defined laws to protect the autonomy and dignity of the vulnerable citizens like “The HIV and AIDS (Prevention and Control) Act, 2017” which prohibits from disclosing of the identity of HIV patients.  Section 228A of the Indian Penal Code prohibits disclosing the identity of a victim of a sexual offence. Another provision is Section 327(2) of the Code of Criminal Procedure which permits the presiding judges to conduct trials, in camera. The Juvenile Justice Act prevents the media from reporting about the identity of a juvenile offender.  Media urged that India should not repeat the mistakes of the UK and EU of giving excessive power in the hands of judges.

CONCLUSION

Even though self-regulation of media can be ineffective at times but the governmental regulation of media in consonance with the constitution can strike a balance between the freedom of speech and the right to privacy. [13] In this era of breaking and trending information, social media tends to make super-injunctions or gag order of very little worth. Super-injunctions did not help in achieving the balance between freedom of speech and privacy and in the words of Matthieson, it was just a draconian, unwieldy, and disproportionate gagging order.[14] While privacy can be very subjective, its concept is still vague in law. The question of what constitutes public interest is hazy too. The matter in hand is that both privacy rights and freedom of speech can be abused clearly. Super- injunction was a very powerful weapon for the rich to protect their reputation but the right to privacy is not just for the powerful but the vulnerable as well. Media should not stop only when its illegal, but the threshold should be unethical. The freedom of speech and expression is for every citizen who is affected by the ill actions of the upper strata of society not just economically but, socially and politically as well. Internet provides a huge platform for that and no injunction or legal tactic would ever be able to effectively stop these internet users. Hence, with the emergence of social media and internet, Super- injunctions died a slow death.

[1] Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice (Master of rolls. May, 2011)

[2] Editorial “Cameron ‘uneasy’ about use of injunctions” BBC NEWS (April 21, 2011)

[3] Campbell v MGN Ltd. [2004], UKHL 22 (May 6, 2004)

[4] Douglas v Hello! Ltd. (No.8) (HL)

[5]  CTB v News Group Newspapers Ltd & Anr., [2011] EWHC 1232 QB

[6] Michael Seamark, “Jeremy Clarkson lifts the gag on his ex-wife”, Daily Mail (October 27, 2011).

[7] Brennand, Mellisa, “The Life and Death of the Super-Injunction.”, NEL Rev.3 159 (2015).

[8] Gautam Bhatia, “Gag orders on the media have to go”, Hindustan times (May 01, 2019).

[9] Editorial “How Indian courts have ruled on Press Freedom over the past year’’, Bar and Bench (May 03, 2019)

[10] Shashi Tharoor  vs. Arnab Goswami, MANU/DE/4544/2017

[11] Harish Salve “ No reason to GAG’’ India today, (February 3, 2014)

[12] Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors., Writ Petition (Civil) No 494 Of 2012

[13] Arghya Sengupta, “Acting Out of Turn: Supreme Court and Postponement Orders.”, Economic and Political Weekly 38-41 (2012)

[14] Sophie Matthiesson, “Who’s Afraid of the Limelight? The Trafigura and Terry Super-Injunctions, and the Subsequent Fallout”, 2 Journal of Media Law 153, 154. (2012)

Author: Ms. Swati Anand, NMIMS, Bangalore

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