Who would have thought that Ryan Giggs' sexual peccadillos would cause a minor constitutional crisis in the UK?

Of late, the UK press has worked itself into something of a frenzy over the issue of (the rather scarily named) "super-injunctions". So the "quality" media like The Guardian, The Independent and The BBC, as well as the more predictable Sun and its ilk, have devoted copious amounts of coverage to the rights and wrongs of judicial orders that prohibit not only the publication of the names of parties to a civil action, but also that action's very existence.

'Cause that is what a "super-injunction" is. It is not the same thing as "name suppression" in a criminal case; the issue that some folks from time-to-time get a bit steamed up about here in NZ. Rather, it is an order prohibiting the publication of information that is made in a civil trial on the basis that such a disclosure about a party's involvement in some legal action would be a breach of that party's privacy rights. So while "super-injunctions" raise the same sorts of very general issues as criminal name suppression - the public's "right to know" and the importance of open justice - they do so in a quite different context and with quite different questions to be asked.

Over at Media Law Journal, Steven Price has been all over this issue for a while now - mostly pointing out how OTT much of the press' coverage of the issue has been. As he's said so much on this on so many occasions (as well as knowing more about the basic issues of law that are involved than I do), I'll just urge you to go here and read his collected wisdom for yourself.

But there is one aspect of the most recent manifestation of this debate (or is that furore?) that I do want to comment on. As you may well know from our own media's coverage, Ryan Giggs has just been publicly named as the married footballer that "allegedly" slept with a woman who then went to sell her "story" to a UK tabloid "newspaper". He brought an action to prevent this story being published on the grounds it breached his right to privacy, and while that action is being heard the courts granted an injunction to stop the publication of his name (but not the fact that there was a case being heard involving a footballer). (Actually, this means Ryan Giggs' case was just an "ordinary" injunction, not a "super-injunction" ... but no matter, as such details routinely are overlooked by the media when reporting on this issue.)

At this point, technology enters the picture. The "twitterverse" lit up with "tweets" revealing Ryan Giggs' identity. Ryan Giggs' lawyers then tried to stem this tide by commencing legal action against Twitter, seeking the identities of those who had posted his name (with the implicit threat of coming after them individually). And all the while the old media, including the paper that had bought the story, sat in frustration as they were kept silent by their ethics ... OK, OK their fear of substantial fines (or worse) if they were to breach the court's order.

Until now. Because a Liberal-Democrat MP, John Hemming, got up in the House of Commons and asked a question that explicitly named Ryan Giggs as being the fellow in question. Now, Mr Hemming can do that without fear of subsequent punishment by the courts because he's protected by Parliament's absolute freedom of speech privilege - there are no legal consequences whatsoever for anything said during a proceeding of Parliament. And once he had brought the name into the open, the old media saw the door swing open and piled on through on the claim that simply reporting what has been said in Parliament is likewise protected by privilege.

But it's that claim that I'm not sure about. Because I think it is wrong. It certainly doesn't appear to be the case in New Zealand. Back in 2009, the House's Privileges Committee released a report which stated:

The evidence from the Media Freedom Committee of the Commonwealth Press Union (New Zealand Section) suggested that the media incorrectly believed that it had protection from actions such as contempt of court or breach of statutory no-publication provisions when it reported anything said in the House, provided the report was fair and accurate. This is not the current legal position.

So if a New Zealand paper or broadcaster were to do no more than simply report an MPs words spoken in the course of parliamentary proceedings, it still may be legally liable for doing so if those words breach some non-publication order made by a court. The argument "but I'm just saying what an MP said under parliamentary privilege" does not work to give you the benefit of that privilege.

And although the UK has a slightly different statutory background to us, I don't think that this really changes anything. Nor, for that matter, is the UK Parliament itself; on a number of past occasions it has noted that those reporting on its activities risk legal liability if in doing so they breach a judicial order.

(I've written an academic article on this subject that I can't link to on-line - so for the moment, just take my word on this point. Update: This Guardian article spells out the legal uncertainties surrounding this point.)

So, Mr Hemming's actions in the House of Commons may not have opened the legal door that the media is pretending stands ajar. But here's what it has done. It's set up a situation where should any punitive action get taken against the media, it would be the result of their reporting on Parliament. In a nutshell, it would require a court to seek to punish the newspapers and broadcast media for telling the public what had happened in Parliament. And while it may be legally possible to take such an action - it may be that the publication technically is still a contempt for which there is no defence - the constitutional consequences of doing so would be pretty severe.

So what we've got here is a good old-fashioned arm wrestle between institutions. The courts have been busy trying to balance individuals' rights to enjoy a measure of privacy regarding their personal lives with good old-fashioned free speech. The media has been getting edgier and edgier about these developments - especially where their "right" to sell news to consumers is starting to get crimped. Parliament has been pulled into this mess in part by the news media's griping (all MPs want to keep the media as happy as possible - it's their portal to voters after all) and in part by grumpyness over "European" laws taking over good old-fashioned British ones.

Now it's all coming to a head - and the question is which institution is going to demonstrate that it has the biggest muscles?

Comments (21)

by Graeme Edgeler on May 25, 2011
Graeme Edgeler

I'm waiting for a complaint about Parliament TV in NZ... at some point what someone does will surely breach a broadcasting standard, or breach privacy, or something like that and Parliament TV may be in the gun.

They'll argue they're privileged, but they don't expect to win.

by Andrew Geddis on May 25, 2011
Andrew Geddis

Graeme,

The Privileges Committee noted similar in the report I referenced ... it recommended a legislative change to extend privilege to cover Parliament TV (and the radio broadcast service, too). Hasn't happened yet, though.

by Steven Price on May 25, 2011
Steven Price

...there are no legal consequences whatsoever for anything said during a proceeding of Parliament.

Except, presumably, a complaint to Parliament's privileges committee for abuse of privilege. I would have thought that would be a good step. If Parliament can police its own privileges properly, the problem might largely be solved.

by Steven Price on May 25, 2011
Steven Price

Oh, and I note that in the press conference presenting the recent report into super-injunctions (which you'd think might get more play in this debate in that it found that there had only been two super-injunctions since early 2010), the Master of Rolls made this very interesting comment, which support's Andrew's point:

The law relating to contempt of court when it comes to reporting what is said in Parliament is astonishingly unclear...

by Steven Price on May 25, 2011
Steven Price

PS, I think there's some obiter from Lord Denning who suggesting that the privilege to report on Parliament would extend to reporting contempts committed by MPs in the House.

by Graeme Edgeler on May 25, 2011
Graeme Edgeler

PS, I think there's some obiter from Lord Denning who suggesting that the privilege to report on Parliament would extend to reporting contempts committed by MPs in the House.

Wouldn't that be a lot more likely to fly in the UK where the privilege to report defamatory statement is (I assume) largely a common law matter, as opposed to New Zealand, where the privilege for defamation is statutorily based, and clearly in respect of defamations only.

by Andrew Geddis on May 25, 2011
Andrew Geddis

PS, I think there's some obiter from Lord Denning who suggesting that the privilege to report on Parliament would extend to reporting contempts committed by MPs in the House.

Yes - there is. But, it's obiter. And, it's Lord Denning. And, there's no basis for it anywhere else in the common law. So ... you know ...

by Deborah Coddington on May 25, 2011
Deborah Coddington

Giggs, Strauss-Kahn, why do such supposedly successful men fail to foresee that if they don't keep their dicks to themselves it's all going to end in tears?

by Steven Price on May 25, 2011
Steven Price

Andrew: fair enough. But it's all we've got. And I think Burrows and Cheer cite it as an indication of what the law might be.

Graeme: the UK Defamation Act 1996, has, like our Defamation Act, a lengthy schedule setting out situations of statutory qualified privilege. Though perhaps the Denning comment was before extensive statutory protection was enacted. Not sure.

by Andrew Geddis on May 25, 2011
Andrew Geddis

"Giggs, Strauss-Kahn, why do such supposedly successful men fail to foresee that if they don't keep their dicks to themselves it's all going to end in tears?"

Especially when the lady in question in Ryan Giggs' case is ... how to say this ... rather fond of publicity and not averse to revealing rather a lot about (and of) herself in some pretty dodgy papers/magazines!

"Andrew: fair enough. But it's all we've got."

However, even the UK House of Commons Privileges C'tee thinks Denning just made this common law rule up (I know, I know ... surprise, surprise!) And he did so citing a case that relates to the media's privilege to report defamatory remarks made in the House - where the balance of interests is completely different from contempt. And yes - Denning's comment pre-dated the 1996 legislation.

by Dean Knight on May 26, 2011
Dean Knight

I was interested to see that the judges who investigated the injunctions tried to disclaim responsibility for the developments in the law of privacy, arguing they were only giving effect to Parliament's recognition of a right to private life in the Human Rights Act 2001.

I'm a little uncomfortable with this abdication of responsibility for these common law developments. It seeks to maintain the myth that courts do not make law - which is patently false. Further, I've always been sceptical about the UK application of the HRA to private common law such as this (the dreaded horizontal effect). I've always thought it's inconsistent with the purpose of the HRA and logically flawed, and have always prefered the Canadian "constitutional backdrop" approach.

by Andrew Geddis on May 26, 2011
Andrew Geddis

Dean,

Well, isn't there a difference between responsibility for the details of an area of law (the precise form and application of the legal tests in particular cases) and the bigger picture question "why are the courts in this area at all?" And there's a pretty good argument that Parliament knew what it would get by enacting the HRA (look, for example, at s.12). So to now moan about "activist judges" importing European notionsis a bit disingenuous, no?

Plus, compare s.6 of the HRA:

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right....

(3) In this section “public authority” includes—(a) a court or tribunal.

with s.32 of the Charter:

(1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

That's relevant too, no?

by Dean Knight on May 26, 2011
Dean Knight

Andrew:

I'm not convinced. I appreciate the textual differences in the application clauses (and the NZ one as well). Folk like Risworth, properly in my view, explain how the reference to the courts is still given meaning, but does not offend the "state vs citizen" purpose of the bill of rights by requiring the common law conform with the protected rights.

That's not to say the courts should ignore the bills of rights when developing the common law - as they form part of the constutitional fabric. But that's different to effectively requiring conformity.

And if the bills of rights are all pervasive, as they would be if the common law is included, then why didn't the parliaments just say so? There's now talk in teh UK of the right to a home etc prevening private landlords from ejecting tenants... Slippery slope?

by Andrew Geddis on May 26, 2011
Andrew Geddis

"That's not to say the courts should ignore the bills of rights when developing the common law - as they form part of the constutitional fabric. But that's different to effectively requiring conformity."

Except in the case of the UK there is a body that does require conformity - the ECtHR. So, if the UK courts don't do this up front, the risk is that Strasbourg will come in down the track and require them to do it down the track. Surely that's a relevant difference between the Canadian (and NZ) situation and the UK one?

None of which is to say that the UK situation is "good" or "desirable" ... but it may be unavoidable given the HRA's connection to the Convention and all that that brings.

by Dean Knight on May 26, 2011
Dean Knight

Noted. The role of Strasbourg is a difference, even though the UK HRA was modelled on the NZ approach.

But I'm not sure it explains the conformity point. The obligation to ensure consistently remains a governmental, not judicial, one (at least in my view). That said, I'm not sure of Strasbourg's attitude common law, as opposed to legislative action (or inaction)? I wagged that class I fear...

by Andrew Geddis on May 26, 2011
Andrew Geddis

"That said, I'm not sure of Strasbourg's attitude common law, as opposed to legislative action (or inaction)?"

Source of law doesn't matter - a country's obligation is to have a system of law that is Convention compliant. So, for example, in Tolstoy Miloslavsky v. United Kingdom an award of 1.5 million pounds in libel damages (under common law principles) was found to be in breach of Article 10.

That said, Lord Judge sympathises with your point about prioritising the Convention over common law ...

by on May 27, 2011
Anonymous

"Giggs, Strauss-Kahn, why do such supposedly successful men fail to foresee that if they don't keep their dicks to themselves it's all going to end in tears?"

"Especially when the lady in question in Ryan Giggs' case is ... how to say this ... rather fond of publicity and not averse to revealing rather a lot about (and of) herself in some pretty dodgy papers/magazines!"

Isn't there usually some sort of process that takes place to establish naughtiness or otherwise? if not there should be.

by Dean Knight on May 31, 2011
Dean Knight

Andrew:

Yeah. Thanks. Not giving up on this and now done some swatting.

I take the point that the Convention itself is concerned with law regardless of source. But as an instrument, surely it's enforcement continues to be "vertical", not "horizontal". That is, claims in Strasbord for non-compliance are bought against the state, not individuals.

In any vertical action, folk can only complain that the UK govt hasn't done enough to enforce the rights, not to assert the rights against other individuals? Any complaint about the common law is therefore indirect, and related back to Parliament not legislating to ensure compliance?

This, too, seems to support the vertical, not horizontal, view?

by Andrew Geddis on May 31, 2011
Andrew Geddis

Dean,

"In any vertical action, folk can only complain that the UK govt hasn't done enough to enforce the rights, not to assert the rights against other individuals? Any complaint about the common law is therefore indirect, and related back to Parliament not legislating to ensure compliance?"

Sure - but what's the cash value of this difference? The only way a person has any legal "rights" is via State action. So, if you can go to the ECtHR and get it to find that national law has failed to protect your Convention rights in a dispute with another individual, then how is this any different in practice from saying "the Convention rights apply as between individual citizens"? So - take the case of Von Hannover v Germany ... the ECtHR's ruling that German law failed to adequately protect Princess Caroline's Article 8 rights in practice says that her privacy rights trump the media's free speech rights, and consequently Germany must make its laws say the same. Granted that this finding doesn't take effect until the country (Germany) moves to give it domestic application, and granted any remedy (damages) comes from the country (Germany) that failed to protect your rights as it should have, but I'd suggest there's still a direct application of the Convention to "private" law that is different from the case in Canada ...

As for how the ECtHR's rulings enter the domestic sphere - well, it may be through legislative action. But it also may be through judicial notice under s.2 of the HRA. So, for example, even though Parliament hasn't legislated to make the Von Hannover decision the law of the UK, the UK courts still refer to it in deciding how to balance Articles 8 & 10.

by Hesiod on June 02, 2011
Hesiod

this whole affair is bullshit. the issue is not one of free speech but one of free identity. the dweebs from the twitterverse want to spray their crap all over the world but dont want to be held accountable. as for the msm. they always think they are more powerful than parliament or the government but in the end they can always be shut down if they step over socially acceptable boundaries.

and as for what ryan giggs does in his spare time then anyone who really wants to know has a severe case of pathological voyeurism and should seek treatment immediately.

by Dean Knight on June 30, 2011
Dean Knight

Andrew:

Hmmm. Been meaning to send through a chapter I recently found which canvassed the UK issue quite well, which was a little more sceptical about horizontal effect.

But, more contemporaneous issue.

You may have heard Ursula Cheer's comment on the wireless about the "censorship" of the King/Wishart book, noting that the Bill of Rights would not govern the situation.

Your thoughts? How far would you take this horizontal effect thing? And do you thing it is engaged (and, perhaps, breached) here?

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