Free Life Commentary,
A Personal View from
The Director of the Libertarian Alliance
Issue Number 208
23rd May 2011
A Common Sense, and Therefore a Libertarian,
View of Super Injunctions
by Sean Gabb
Though everyone else has been discussing the matter for weeks, I feel obliged, as Director of the Libertarian Alliance, to make some comment, however brief, on the universal injunctions that the English courts have recently taken to granting. Since the Libertarian Alliance is a corporate body, I am obliged to respect court orders. I will, therefore, not name the prominent footballer who is at the centre of the current scandal. But I am allowed to give my opinion of the nature of these orders.
I last worked in the Law twenty years ago. In those days, there were, broadly speaking, two kinds of injunction. There were those made at the end of an action – for example, a losing defendant might be ordered “neither himself nor by his servants or agents or any of them” to continue throwing rubbish over his neighbour’s fence. Breach of such an order was contempt of court and might be punished by unlimited fine, or a maximum of two years in prison, or both. Then there were those made before the beginning of an action, where a Judge could be persuaded that some civil harm was imminent that a final grant of damages might not be sufficient compensation. These injunctions were granted ex parte – that is, on the application by the plaintiff alone – and would be communicated once they had been granted to the defendant. They would be granted for a limited time, usually until both parties were able to make an appearance in court, though they might be extended, one hearing at a time, until final judgment. The plaintiff was required to begin his action within a reasonable time, and to give a cross-undertaking for damages – that is, to promise compensation in the event of losing his case. Above all, it was required that the defendant or defendants should be named, or at least clearly identified, in the injunction, and that the injunction should not take effect until the defendant or defendants had been unambiguously notified that it had been granted.
From a libertarian point of view, there is nothing in itself wrong with such injunctions. Let us suppose that my neighbour is proposing to spray five hundred gallons of paraquat all over his garden, and that I have reasonable grounds to fear that this will poison the well from which I draw water. In this case, I should be able to begin an action to protect myself by compelling him not to do anything until our various rights to use our property have been clearly demarcated by a Judge.
There is nothing necessarily wrong with injunctions that do not explicitly name those against whom they are made. I remember an injunction made in about 1988 against a market trader who was selling copyrighted material. Efforts had been made to find out his name, but without success. In the end, he was named in the injunction as “A B” and he was identified by photographs attached to the order.
What makes the current generation of “super inunctions” illegitimate is that they suppress comment on what may well be legitimate issues, and that they are made against an indeterminate number of people, most of whom will not have been made aware of the injunction itself.
For example, let us again suppose that Lord Flop has been accused of having sex with a sheep. He runs into court and claims that his children will be very upset if they are taunted in school about his alleged taste in love. An injunction is then granted against the whole world to prevent all discussion of the allegations. No individual or individuals are named in the injunction. Those to whom it is communicated are ordered not even to reveal the existence of the injunction. This means that if I hear about Lord Flop and his sheep, and mention it on FaceBook, I shall be in contempt of court.
This is objectionable because, if no order has been made against me as an individual, I fail to see what obligation I should have to keep silent. Even if I have reasonable cause to believe that there is an injunction, I still fail to see what obligation of silence I should have. I shall need to see the injunction – to see whom it protects and in what nature and degree. At the best, if you tell me about Lord Flop, and I repeat what you have told me, the only recourse Lord Flop should have is to get his lawyers to write to me, or go into court for an extension of whatever ex parte injunction he has already obtained.
The argument against this is that these traditional means of protecting reputation do not safeguard his privacy. The answer, however, is that there should be no right of privacy as such. The only right recognised within the mainstream liberal tradition is to free though reasonable use of one’s life and property. From this derive the practical rights to freedom of speech and action and to due process of law, and such further rights as can be derived from these. Privacy is not among these further rights. Doubtless, privacy is a desirable thing. But so is education and an income of not less than £50,000. But their desirability does not in itself make them into enforceable rights. And any attempt to create a right to privacy must inevitably involve censorship.
Moreover, this must equally involve privilege for the rich. This, after all, is what the libel laws have always amounted to. I have the same right as the hypothetical Lord Flop to the protection of my reputation. Unlike Lord Flop, though, I do not have the money to hire lawyers to argue my case in court. Any extension of the libel laws to include a right to privacy will only mean that ordinary people will be no more protected than before from having their reputations destroyed, but rich individuals and corporations will have one more weapon to use to cover up what may be gross hypocrisy or actual wrong-doing.
I say, then, both as an individual libertarian and as Director of the Libertarian Alliance, the following:
1. That no injunction, of whatever kind, should be granted except against named or clearly identified individuals;
2. That no injunction should take effect until it has been unambiguously published to the defendant or defendants;
3. That, while there is an arguable case to some kind of defamation law – the public interest, for example, in providing a peaceable alternative to duelling or the procurement of violent redress – there should be no general right to privacy.
I could go further, and discuss what kind of defamation law I might think acceptable. But I have said enough for the moment.
© 2011 – 2018, seangabb.
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