Super injunctions: coming to a Loch near you?

When one considers how infrequently IP issues hit the headlines in Scotland, it's easy to see why the Kats make such a fuss of them when they do actually surface, like Nessie, above the placid waters of Loch Ness.  Accordingly this Kat is particularly pleased to hear this news from his friends Robert Buchan and Gill Grassie (Brodies LLP), who bring him the following tidings, on the subject of "super injunctions", no less:

It is often said it is key that justice be seen to be done.  Consistent with that, nearly all hearings are conducted in open court and can be reported in the media. Apart from cases where reporting could lead to a substantial risk of prejudice or harm vulnerable parties, the idea of anonymous judgments and reporting restrictions provokes heated debate on the extent to which freedom of expression should be legally restricted.

It is fair to say that Scotland has not yet had to deal with the dilemmas often presented by a high-profile controversial so-called super injunction application (interdicts being the Scots law term) which is usually sought to protect the privacy of a rich and famous celebrity. Readers may be aware that such orders prohibit not only the publication of information relating to a party but also the very fact of the existence of any court proceedings or order. Quite the contrary was demonstrated in 2011 when the Scottish newspaper The Sunday Herald published a photograph which disclosed that Ryan Giggs was the party behind one such English order [you can read how the English media reported this disclosure here and here]. By doing so it highlighted the risk in failing to appreciate that Scotland is a separate independent legal jurisdiction within the UK. As the interim injunction in that case was granted in England it was not legally binding on Scottish-based publishers in relation to circulating newspapers in Scotland. The failure to obtain an equivalent interim order in Scotland in that case quite literally meant that the cat was out of the bag.

The issues of anonymity and reporting restrictions are currently very topical in Scotland as The Scottish Civil Justice Council has just launched a consultation on draft revised court rules. These new rules would introduce clearer rights for the media to challenge the grant of any order which restricts the reporting of proceedings, rather than the current position which focuses mostly on possible variation or recall after the order is granted. The consultation is open until 2 October 2013 and can be accessed here. In 2010 in the case of Mackay and BBC Scotland v The United Kingdom the European Court of Human Rights was critical of the informal procedure which had been adopted in Scotland up to that point which allowed orders to be made and then become final if the media made no challenge within 48 hours. That criticism related to a statutory power under the Contempt of Court Act 1981 to restrict reporting and led to the creation of Chapter 102 of the existing Rules of The Court of Session. It was felt that reporting restrictions and related anonymity were not limited only to contempt situations and that wider reforms were required to ensure that all situations in which a court is considering making an order which restricted freedom of expression were covered, including other statutory provisions as well as inherent powers of the court. Different decisions in Scotland had produced different views on the extent to which Scottish Courts had inherent powers to grant anonymity and so clarification was required and a level playing field created.

This Consultation on the new draft rules and the extent of reform required was postponed awaiting the recent first instance and appeal decisions in the Court of Session in the case of Application of BBC Scotland re A v Secretary State for the Home Department at [2012] CSOH 185 and [2012] CSIH 43 respectively. This was a long-running asylum case. Both the first instance and appeal court disagreed with earlier cases and ruled that the Court did have an inherent power to grant anonymity. However the appeal court indicated too that there should be a consultation to ensure that rules were in place which allowed interested parties (i.e. the media) to be notified in advance of any order being made and allowing an opportunity to challenge such orders being granted. Thus the new draft rules allow the media an opportunity to make representations to the court before any order is made. This is in addition to the existing rules of challenge or variation after grant. The court would have to send a copy of the draft order to people who have registered an interest in seeing such orders and include sufficient information to provide them with a basis to challenge the application. No doubt a long list of interested parties will quickly form if these rules are put in place. However,  notably,  there is also a non-notification rule which applies when there are compelling reasons not to inform the media such as an individual seeking an interdict to restrict the disclosure of private information.

So what of super injunctions in Scotland? Adopting a "canny" Scottish approach, the Scottish Civil Justice Council is not convinced that the non-notification rule will result in a rush to obtain these types of orders in Scotland solely on the basis that there have not been so many privacy type cases to date. However the effect of these new rules and the impact of the high profile Giggs case certainly mean that the stage is set for super injunctions (or interdicts) becoming more common. It is worth all parties and their legal advisers, and not just footballers, being aware that this can result in a whole new ball game in Scotland.

This Kat considers that there is no right answer in situations such as this, since there is always likely to be a clash of powerful countervailing and often public interests: the best that can be done is to find a compromise that inflicts the least amount of damage, or delivers the maximum degree of benefit, within pretty well impossible parameters.

Merpel wants to know more about the prospects of a new ball game for Scotland. Is it because they're not showered themselves with glory in recent times when it comes to all the old ball games ...?