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Why are Super-Injunctions more evil than Osama Bin Laden?

May 7, 2011

Why does everyone who has a voice that other people listen to (media) forget about Article 10 of the European Convention on Human Rights? Or Article 8 for that matter?
The super-injunction paddy by the collective media rattles on, despite being interrupted by the death of OBL, a referendum and a royal wedding. They won’t let the matter drop.
Article 10 protects freedom of expression in signatory countries (of which we are one since 1956). It is qualified, not an absolute right like 3 and 4. Before article 10 sits 8, the ‘to respect for one’s private and family life, his home and his correspondence’.
In plenty of case law, the articles have been found to have no precedence over the other. Lord Steyn called it ‘the ultimate balancing act’ in Re: S (FC) (A Child) [2004] UKHL 47, at [17]. Indeed, 10 has had the more favourable treatment, being treated as the starting point above 8 in defamation cases.

The media keep saying that ‘judges have introduced a privacy law by the back door’. THEY HAVEN’T!. It has been part of our law since 1956 (albeit, more firmly since the HRA in 1998) and shall continue to be. Ian Hislop was not bothered about kiss and tell stories being injunction-ed, but seems to want more serious stories to have greater protection. But they do, in the form of Article 10. The more in the public interest a story is, the greater it’s chance of being published. Tabloid kiss and tells may well be what the public are interested in, but that doesn’t make it a story of public interest as the saying goes. John Terry’s injunction mainly failed because the Judge thought he was more worried about his commercial interests than his family, and so rightly lifted it. In these cases, it may be very amusing to look at the football and know who has a good barrister, but all it takes is a quick search of Twitter to find out who these people are (interestingly Twitter had *forgotten* many tweets on the subject when I searched it, telling me that no one had ever used the phrase ‘super-injunction’ on the site). After another 30 seconds of searching I still found the answers I was looking for. So surely the injunction cannot stand any more? Once it is out, it is out and we should be able to dissect it. For whose benefit, however, remains to be seen.

It seems that super-injunctions are here to stay, and the media will keep on referring to them as the devil himself. It is certainly an impressive feat that in a busy few weeks of news, they seem to have attracted more vitriol than the dead Sheik of Al-Qaeda.
Strange times.

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