THIRD PARTY MEDIA CAN CHANGE GAGGING ORDER

Third party media can change gagging order

Here's a juicy tidbit from the LexisNexis Butterworth service - but not (so far) on any of the other subscription services: it's X and another v Persons unknown, a Queen’s Bench Division from Mr Justice Eady this Wednesday.

In October 2006 a married couple (Mr & Mrs X, it seems) obtained a ‘John Doe’ injunction without notice against ‘persons unknown’ but identified by description. The order was intended to prevent the further dissemination of allegations, which were said to be inherently confidential in character, about the state of their marriage. The order was served only on third party newspaper groups.

Two newspaper companies, MGN and News Group, applied to discharge the injunction while a third company, Associated Newspapers, applied to vary its terms if it were not to be discharged. All three argued that it would have been desirable for the newspapers to have been notified of the nature of the application before it was made and that the Xs were not entitled to the protection of the injunction, either because their rights under Article 8 of the European Convention on Human Rights were not affected (there was no reasonable expectation to have information of that kind protected by the law) or because it was unlikely that any entitlement to privacy under Article 8 would outweigh the countervailing right to disseminate information under Article 10 of the same Convention.

Eady J kept the order in force, but did tweak it a bit. In his opinion a proper consideration of media publishers' Article 10 rights (and also their rights under Article 6) meant that, when anyone is planning to get a gagging order such as that obtained by the Xs, those publishers should be given a realistic opportunity to be heard on the appropriateness of granting the injunction and as to the scope of its terms. The media have no difficulty instructing their lawyers to come to court at short notice and, if they are content to do so and no conflict arises, to arrange for common representation.

The IPKat is pleasantly surprised at the good judge's direct and practical approach; he wonders if any of our Chancery judges would have been so succinct. Merpel adds, Article 6 of the European Convention on Human Rights is particularly appealing to the media. The first bit (with emphasis added) reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".

Gagging orders here, here and here
More on intimate relationships here