British super - injunctions and the clash between private and public interests

Résumé du document

One of the specificities of the British legal system and more generally of the common law is the notion of Equity. Equity is judge-made entirely and is meant to balance the stricter rules of pure common law with principles of fairness. Injunctions are an equitable remedy, insofar as they are not the work of the legislator but rather a creation of judges. Super-injunctions, as a specific category of injunctions, are a remedy originating in Equity, and are also a manifestation of the historical power of English courts. Under Equity, English courts have historically been able to give out injunctions in personam: "Equity enforces its decrees by a personal order against the defendant: breach of the order would be a contempt of court, for which he was liable to imprisonment.

Provided that the defendant is within the jurisdiction of the court, it does not matter that the subject of the dispute is outside of it"2. This demonstrates the great power of English courts, which manifests itself in the fact that today, the breach of a super-injunction generates liability for contempt of court, which can be sanctioned by fines or even imprisonment. Contempt of court is deeply engrained in the British legal system, as it is an established principle in the common law but also by statute: the Contempt of Court Act of 1981 creates a strict liability rule "whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in legal proceedings regardless of intent to do so".

Extraits

[...] In 2010, in LNS v Persons Unknown, the court refused to grant a super-injunction because, inter alia, the evidence that the publication had a public interest was insufficient. This case is also part of a larger body of recent British case-law which demonstrates that the courts almost systematically consider whether the information that the super-injunction would protect is already available to a portion of the public or has been spread by word of mouth. These cases offer an insight into the way British courts have balanced the rights in article 8 and article 10 of the ECHR in the context of super-injunction requests. [...]

[...] However, to this end, the British courts need information on these users that only the company itself can disclose. As Twitter is an American company with its seat in California, the British Courts have no authority to bring an action against Twitter itself. Courts can only rely on the company's spontaneous consent to disclose information on its accountholders. In fact, Twitter has, in the past, agreed to cooperate with British courts and has effectively disclosed users' identities when these users had “tweeted” on the existence of a super23 See: Kayleigh Roberts, “Injunction Dysfunction”, in Inside Counsel, August 2011, page Global Litigation and Conflict of Laws I Final Paper injunction, mainly because a refusal to comply on Twitter's part would reflect poorly on the company. [...]

[...] Super-injunctions have yet to come before the European Court of Human Rights, and one can speculate on how the Court's balancing of private rights and public interests will or will not differ from the English courts' line of action so far. However, super-injunctions are flawed legal remedies and their existence is increasingly jeopardized by parliamentary privilege, social media and globalization Super-injunctions as a clash between private and public interests Super-injunctions, a unique legal tool rooted in British legal history One of the specificities of the British legal system and more generally of the common law is the notion of Equity. [...]

[...] The rise of super-injunctions has led to believe that British courts tend to favor privacy over freedom of speech. This has created a concern that freedom of speech could begin to automatically surpass other rights. In light of this struggle between the two rights, the House of Lords stressed the importance of the balancing exercise (notably in Re S A Child), and in a speech before the House of Lords, Lord Irvine of Lairg reaffirmed the fact that "Judges are under instruction from Parliament in the HRA (Human Rights Act) to balance the right of respect for a person's private family life against the right of freedom of expression in article 12”14. [...]

[...] Re S A Child, [2004] UKHL 47. Associated Newspapers Ltd v HRH Prince of Wales, [2006] EWHC 11. Max Mosley v. News of the World, [2008] EWHC 1777 (QB). RJW and SJW vs. Guardian News Limited and Persons Unknown, HQ September 2009. LNS v Persons Unknown, [2010] EWHC 119. [...]