Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents

CHAPTER 7: Conclusions and Recommendations

The following is a list of the conclusions and recommendations that appear in the report. Their place in the main text is indicated in the reference at the end of each paragraph.

Is the law working?

The balance between articles 8 and 10

We believe that the courts are now striking a better balance between the right to privacy and the right to freedom of expression, based on the facts of the individual case (para 32).

A privacy statute

We believe that any statutory definition of privacy would risk becoming outdated quickly, would not allow for flexibility on a case-by-case basis and would lead to even more litigation over its interpretation. For these reasons we do not recommend one (para 37).

We do not recommend a statute declaring in broad terms the right to privacy. We disagree with criticisms that privacy law has been "judge made" and does not have parliamentary authority; it has evolved from the Human Rights Act 1998 (para 41).

Determining the public interest in private lives

We do not recommend a statutory definition of the public interest, as the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases. As an alternative, we expect the reformed media regulator, in conjunction with other regulators, to publish clear guidelines as to what constitutes the public interest, and to update them where necessary (para 50).

Injunctions and section 12 of the Human Rights Act 1998

We do not think that section 12(4) of the Human Rights Act 1998, in requiring the courts to "have particular regard to the importance of the Convention right to freedom of expression" when considering whether to grant any relief, means that article 10 has precedence over article 8. The practical effect of the claimant satisfying section 12(3) (see below) means that article 8 does not have precedence over article 10. However, we support the decision of Parliament to make clear in law the fundamental importance of freedom of expression and would be concerned that removing section 12(4) might suggest that this is no longer the case. We do not recommend any alteration to the law in this area (para 59).

Departures from the principle of open justice should be exceptional and should only happen when they are essential. We strongly welcome the arrangements made by the Master of the Rolls to monitor and publish figures on the number of anonymised and super-injunctions granted and the circumstances in which they are granted (para 64).

We recommend that super-injunctions and anonymised injunctions that were granted before the Master of the Rolls' committee's report and are still in force are reviewed by the courts to ensure they are still necessary and are compatible with that committee's conclusions on open justice. Those reviews should be prompted by the courts writing to the parties concerned. Once reviewed figures on them should be published (para 65).

When an injunction is granted the court should consider fully its effect on individuals restrained by the injunction, such as the effect on their ability to seek legal advice or funding for legal representation, or to report relevant matters to the authorities. Guidance on this should form part of the Practice Guidance issued by the Master of the Rolls (para 69).

We recommend that interim injunctions granted in one jurisdiction in the United Kingdom are enforceable in the other two jurisdictions in the same way as final injunctions are (para 74).

Privacy, celebrities and public figures

We believe that those who actively seek publicity, especially for gain, should accept that this will mean enhanced interest in their private lives by the media. This should not, however, mean that they sacrifice all rights to privacy. The degree of public exposure of an individual, and the extent to which they have sought it and gained from it, are relevant factors for the courts to take into account in determining a privacy claim. This will depend on the facts of the particular case (para 80).

We reject the view that because an individual exposes his or her children to publicity the children become fair game for the media. We believe that parents who expose their children to public gaze for their own commercial gain or publicity are irresponsible and make it harder for them to defend their children's right to privacy in other circumstances. However, even in those instances there must be exceptional reasons for it to be in the public interest for the media to publish information affecting the privacy of children (para 81).

Commercial viability of the press

The media play a vital role in furthering public debate, exposing wrongdoing and enhancing democracy. Whilst there is clearly demand for scandal and gossip, this should not stray into intrusion into people's private lives without good reason. Chief executives and boards of holding companies should take responsibility for ensuring that news publishers uphold high standards, with processes for protecting privacy firmly adhered to (para 89).

Improving protection of privacy

Online enforcement

We believe the Attorney General should be more willing to exercise his power as Guardian of the Public Interest to bring actions for civil contempt of court in respect of breaches of injunctions online. The threshold for him intervening should be lower. Such action would provide a strong deterrent against future such breaches (para 104).

We recommend that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook. Beyond that, claimants in privacy cases should make full use of notice and take-down procedures operated by responsible internet service and social media providers, who should also seek to disseminate best practice and discourage illegality amongst users and other providers (para 109).

Where an individual has obtained a clear court order that certain material infringes their privacy and so should not be published we do not find it acceptable that he or she should have to return to court repeatedly in order to remove the same material from internet searches (para 114).

Google acknowledged that it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find their objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced (para 115).

When issued with an injunction, media organisations should only circulate the notice to those employees who have authority to publish. An up-to-date list of these individuals should be maintained by each organisation, and made available to the court upon request (para 119).


We reject the case for a statutory requirement to pre-notify. However, the reformed media regulator's code of practice must include a requirement that journalists should notify the subject of articles that may constitute an intrusion into privacy prior to publication, unless there are compelling reasons not to (para 127).

If a complaint is made to the new regulator about an individual's right to privacy having been infringed and that individual was not given prior notification of the story, the publication should be required to explain why they did not do so. If it was because it was in the public interest not to, the publication should state how, and with whom, the public interest was established at the time (para 128).

Courts should take account of any unjustified failure to pre-notify when assessing damages in any subsequent proceedings for breach of article 8 (para 129).

Whilst damages for breaches of privacy are never as good as preventing the breach in the first place, the maximum level of damages that has been awarded is too low to act as a real deterrent. We recommend that the courts should have the power to award exemplary damages in privacy cases, if necessary by giving the courts that power through legislation. In deciding whether to award exemplary damages the courts should take into account the financial situation of the media organisation concerned (para 134).

Costs and access to justice

The costs of a privacy action are prohibitive to many possible claimants, and can also act to stifle the freedom of the press. Judges and legal representatives must take all possible steps to manage costs more effectively. In particular, we recommend that the practice direction which limits cost capping to exceptional cases should be removed for privacy actions (para 141).

Access to justice is essential for those whose privacy is infringed. Conditional fee agreements have provided people of limited means with the ability to take action when their right to privacy has been infringed; they have also been used by defendants in privacy cases. We have not sought to enter the wider debate on the future of CFAs, but stress that following the reforms to them it is important that access to justice is maintained for all citizens when seeking to protect their right to privacy (para 147).

Many individuals cannot seek redress for a breach of privacy because the legal costs are beyond their means. It is essential that a reformed media regulator provides an alternative route, which is cost free, to prevent and redress breaches of privacy (para 150).

Better regulation of news publications

The need for reform of the PCC

The Press Complaints Commission was not equipped to deal with systemic and illegal invasions of privacy. In this chapter we set out what a reformed media regulator should look like and do (para 160).

Privacy and the PCC

The reformed media regulator needs to play a leading role in resolving privacy complaints. For this to happen, the regulator needs to have recourse to far more effective and timely sanctions than the PCC has. It needs to be, and be seen to be, independent of the newspaper industry. All major news publishers, including online publishers, should come under its jurisdiction. These views inform our subsequent recommendations (para 164).

Independent regulation

We believe that the reformed media regulator must be demonstrably independent of the industry and of government (para 170).

Knowledge of the industry, however, will be essential to the good operation of the reformed regulator. We recommend that industry representatives form a substantial minority of the body that determines complaints. These representatives should have considerable experience of working in the print media, but should not be a full-time employee of any news publisher or have a demonstrable conflict of interest (para 171).

It is important that the body that draws up the code of practice of the reformed regulator benefits from the knowledge of those working in the industry. There should be some members, including its chairman, drawn from outside the industry (para 173).

Inclusion of all major publishers

It is essential that membership of the reformed media regulator extends to all major newspaper publishers. It should no longer be possible for a title unilaterally to opt out of regulation with no sanction forthcoming (para 179).

We recommend that significant penalties be imposed on news publishers who are not members of the reformed media regulator. For example, major advertisers should require membership as a condition of advertising in news publications, including on blogs (para 180).

Status of the regulator

Regulation of the press must be independent of government. But it is clear that the current system of self-regulation is broken and needs fixing. The industry must play a key role in establishing reformed structures, and we welcome the initiative taken by Lord Hunt of Wirral in bringing forward industry-led proposals for replacing the Press Complaints Commission (para 186).

To be successful Lord Hunt of Wirral's proposals must create an independent, powerful regulator which governs all major publishers and has the confidence of the public. However, decisions on the future of media regulation cannot be left to the industry alone to determine. At this stage we do not recommend statutory backing for the new regulator. Instead, assuming Lord Hunt's proposals are adopted by all publishers, we recommend that a standing commission comprising members of both Houses of Parliament be established to scrutinise the process of reform over the coming years. The standing commission will report annually to Parliament on the progress of reform and the effectiveness of the reformed regulator. The annual report should be debated in both Houses. The standing commission must have the power to call for papers and summon witnesses (para 187).

However, should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight. This could involve giving Ofcom or another body overall statutory responsibility for press regulation, the day-to-day running of which it could then devolve to a self-regulatory body, in a similar manner to the arrangements for regulating broadcast advertising (para 188).

The reformed media regulator must publish an annual report. In order to provide an appropriate level of ongoing accountability, the chairman should appear before the standing commission at regular intervals (para 190).

Access for complainants

The fact that the PCC offers a cost-free service is one of its biggest strengths. The reformed regulator should ensure the service is free of charge for users (para 192).

Effective sanctions

Where the reformed regulator is involved in negotiating an apology, it should have the power to determine the location and size of the apology the newspaper is required to publish, and the day of publication (para 195).

Where a newspaper has been found to be in breach of the industry code, we consider public criticism from the regulator, including negative adjudications, to have a significant effect in providing rebuke and modifying behaviour. However, we do not believe this is sufficient (para 198).

We recommend that the reformed regulator should have the power to fine newspapers for unwarranted breaches of privacy. This will encourage publishers to consult the regulator on potentially controversial stories before publication (para 202).

Arbitration and mediation

One of the principal tasks of the reformed regulator should be to play an increased role in arbitrating and mediating privacy disputes. This would reduce the likelihood of recourse to the courts, with all the attendant costs, and will therefore benefit newspapers and claimants. It will also help achieve the other objectives set out in this report (para 209).

Parliamentary privilege and injunctions

Freedom of speech in Parliament and injunctions

The absolute privilege for freedom of speech granted by Article IX of the Bill or Rights 1688 is part of the very foundation of our parliamentary democracy. This privilege places a significant responsibility on parliamentarians to exercise it in the public interest. The presumption should be that court orders are respected in Parliament; and that when a member does not comply with one he or she can demonstrate that is in the public interest or enables the parliamentarian to discharge his or her parliamentary duties (such as representing constituents) (para 219).

Compliance with injunctions in Parliament

We regard freedom of speech in Parliament as a fundamental constitutional principle. Over the last couple of years a few members have revealed in Parliament information covered by injunctions. We have considered carefully proposals for each House to instigate procedures to prevent members from revealing information subject to privacy injunctions. The threshold for restricting what members can say during parliamentary proceedings should be high. We do not believe that the threshold has yet been crossed (para 230).

If the revelation of injuncted information becomes more commonplace, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being "fed" injuncted material with the intention of it being revealed in Parliament, then we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them (para 231).

Media reporting of parliamentary proceedings

The free and fair reporting of proceedings in Parliament is a cornerstone of our democracy. The publication of fair extracts of reports of proceedings in Parliament made without malice is protected by the Parliamentary Papers Act 1840. This cannot be fettered by court order. However, there has been a degree of confusion that causes us the very gravest concern that this freedom is being undermined. The media must know whether or not they are liable to proceedings for contempt in reporting parliamentary proceedings. We therefore recommend that qualified privilege should apply to media reports of parliamentary proceedings in the same way as to abstracts and extracts from Hansard. If legislation is introduced the opportunity should be taken to update the 1840 Act in a clear and comprehensible way (para 241).

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Prepared 27 March 2012