Leading article: Judges and media still move to different beats

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The Independent Online

It was pure coincidence that the committee of senior judges set up a year ago to consider the use of super-injunctions should have delivered its report amid a new hue and cry about the practice. But the timing could not have been more opportune.

Only the day before, a question in the House of Lords had led to the partial lifting of a super-injunction granted to Sir Fred Goodwin, former chief executive of the Royal Bank of Scotland, and the disclosure that he had sought to conceal an alleged affair.

How successfully the judges grappled with the issues in hand, however, is another matter. Certainly, there was a welcome acknowledgement that courts had dispensed injunctions too liberally in recent years – and that included super-injunctions, whose very existence must remain secret. Equally welcome was the frequent reaffirmation of the principles of open justice and free speech. The judges found there had been "justifiable concern" that a form of "permanent secret justice" had begun to develop.

Beyond that, however, the tenor of the report was that the tide had turned, mistakes had already been corrected, and practice had already changed. Super-injunctions, it stated, "can only be granted when they are strictly necessary; they cannot be granted so as to become in practice permanent". The judges suggested the turning-point had been the successful challenge to the super-injunction taken out by the fiootballer John Terry in an effort to conceal allegations of an affair with a team-mate's girlfriend. They revealed that since then, January 2010, only two super-injunctions had been granted, neither of which was still in force. They said there were now many fewer applications or such injunctions.

The judges' overall message seemed to be that the public and the media had no need to worry further; freedom of speech was amply protected, and any judicial excesses on the super-injunction front had been rooted out. The single change they proposed was to give media organisations advance notice of applications for injunctions as a matter of course, so that they could contest them – but not necessarily report them. And they added, in a worryingly elastic caveat, that a judge could also decide not to alert the media in exceptional circumstances. So even if the recommendation were to be accepted, its usefulness would hardly be guaranteed.

An air of complacency implied that the matter was dealt with. Yet at least two big issues remain unresolved. The first – whether personal privacy is over- or under-protected – the judges batted back to Parliament, saying it was up to MPs to decide whether to legislate further, which is fair enough. But on the other – the impact of the internet and social media – the judges seemed supremely high-minded or blissfully out of touch.

Their solution, which only emerged from the presentation, was a combination of hand-wringing about the new media being out of control, calls for a crackdown equivalent to that against internet pornography, and the assumption – flattering to the press, but probably out of date – that the impact of newspaper front-pages far outweighs that of disclosures on Twitter. Thus did they ignore the glaring disparity between the penalties applied to the old media and impunity for the new, and a dilemma which is not going away.