Government refuses to outlaw celebrity gagging orders


Oliver Wright
Wednesday 16 March 2011 01:00

Ministers have ruled out reforming Britain's privacy laws or bringing in new legislation to stop super-injunctions silencing the media, the Justice Secretary Kenneth Clarke said yesterday.

Launching the Government's draft Libel Bill, Mr Clarke said such a move would be "wildly controversial" and there was no legislative time available in Parliament to get it done.

His comments will be a blow to media organisations and freedom of speech campaigners, who have become increasingly alarmed by the use of super-injunctions in the courts to silence the press on privacy grounds.

Last week, it emerged that the former chief executive of Royal Bank of Scotland, Sir Fred Goodwin, obtained a super-injunction banning the publication of information about him – including the fact he was a banker. The very existence of the order can only be reported because Liberal Democrat MP John Hemming raised it in the House of Commons.

Mr Hemming's comments and the reporting of them are protected by parliamentary privilege, which means he cannot face court proceedings. But Mr Clarke said the Government did not intend to look at the issue during this parliament.

"At the moment we are working through things in the Coalition programme. We simply have no plans to start acting on the law of privacy or on super-injunctions. They are not in our programme and it's not something we have plans or policy on at the moment," he said.

The Master of the Rolls is examining the issue of super-injunctions, which is likely to result in fresh guidance for judges on their use. But privacy campaigners would like ministers to go further and ensure the right to free speech is placed above the right to privacy.

Mr Clarke claimed the Libel Bill would bring down legal costs, speed up justice and prevent libel tourism. The proposals will also almost entirely rule out jury trials in libel cases.

But controversial issues for libel reform campaigners – including whether to give internet service providers greater protection and whether specific limits should be placed on companies' abilities to bring defamation actions against individuals – were left out of the Bill. The Government has launched a consultation instead.

A new defence of truth would replace justification and a defence of honest opinion would replace fair comment. The draft Bill puts the law into "plain English", Mr Clarke said. In a bid to prevent trivial actions, any statement must also have caused "substantial harm" for a libel action to be brought under the new plans.

Courts will also have to decide whether England and Wales is the most appropriate place to bring an action in an effort to crack down on "libel tourism". Mr Clarke said: "The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society."

But he added: "It is never acceptable to harm someone's reputation without just cause, so the Bill will ensure defamation law continues to balance the needs of both sides and encourages a just outcome in libel cases."

Super-injunctions that failed

It is rare that a super-injunction, in which the media is prevented from even revealing the existence of a gagging order, is overturned, but in three notable cases the restrictions were lifted:

John Terry

Last year, the High Court overturned the Chelsea captain's super-injunction preventing newspapers from alleging he'd had an affair with an ex-girlfriend of former team-mate Wayne Bridge.

Sir Fred Goodwin

The disgraced Royal Bank of Scotland banker won a secret gagging order preventing his former occupation being revealed. The existence of the super-injunction was disclosed in the House of Commons last week.

Trafigura affair

In 2009, the oil traders Trafigura and solicitors Carter-Ruck obtained an injunction on the publication of the Minton Report into the alleged dumping of toxic waste in the Ivory Coast. They then obtained a secret injunction preventing the media from reporting a parliamentary question about press freedom. Only hours before Trafigura was to be challenged in the High Court, the firm dropped its claim that to report parliament would have amounted to contempt of court.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

View comments