On 27 March 2012 the parliamentary Joint Committee on Privacy and Injunctions published its report. The Committee was asked to consider how best to strike a balance between rights to privacy and freedom of expression in the wake of the furore over so-called “super injunctions”. The courts, the Committee concluded, were now getting the balance about right. The problem still was that information protected by an injunction was readily being published elsewhere, in particular, online.
Chaired by John Whittingdale MP and comprising 13 MPs and 13 Members of the House of Lords, the Committee in its report said online publishers must sign up to new press regulation; “new media cannot be seen to be outside the reach of the law”. The Committee concluded that major corporations like Google should take practical steps to limit the potential for breaches of court orders. Google’s objections in principle to developing technology to monitor websites for material in breach of court orders was “totally unconvincing”; “Google and other search engines should take steps to ensure their websites are not used as vehicles to breach the law”. The Committee said the Attorney General should be more willing to exercise his power as guardian of the public interest to bring actions for civil contempt of court orders in respect of breaches of injunctions online.
There is, the Committee concluded, no need for a new privacy law or a statutory definition of privacy or public interest; the law should be flexible and where the public interest lies in a particular case is a matter of judgment best assessed by the courts. The courts were best placed to balance the equally important rights to freedom of expression and privacy.
The current system of self-regulation was found to be “broken and need fixing”. The Committee called for a new press regulatorindependent from the industry and from government which should have greater sanctions, including the ability to fine media organisations for infringements of privacy rights. The new regulator should set up a system for alternative resolution of privacy disputes that was cost-free. There should be sanctions imposed on publishers, including online publishers, who did not sign up to the rules of a new regulator. The Committee suggested that publishers could be made to sign up if advertisers agree only to advertise in those outlets that are members.
On the resolution of privacy disputes in the courts, the Committee said the maximum level of damages was too low to act as a real deterrent and that the courts should have the power to award exemplary damages. Whilst there was no statutory requirement for prior notification, the Committee in its report concluded that a newspaper intending to publish a story which concerns the private life of an individual should notify the subject in advance unless there were compelling reasons not to do so. Unjustified failure to pre-notifycould lead to increased damages. Once an interim injunction has been granted by a court, parliamentarians should not reveal its details in parliament unless there is a good reason to do so, and it should be possible to enforce the injunction inScotland andNorthern Ireland.
The Committee’s conclusions are bound to influence the shaping of a successor body to the PCC, and will no doubt be read with interest by Lord Leveson.
Carter-Ruck gave evidence to the Committee and partner Alasdair Pepper was a witness.