Leslie Chong is a JD candidate at Osgoode Hall Law School.
Lord Neuberger, the Master of the Rolls, recently gave a speech to the Judicial Studies Board Annual Lecture entitled “Open Justice Unbound?” where he addressed current judicial developments in the UK dealing with open justice and freedom of speech, in particular, the rise in orders granting 'super-injunctions'.
Lord Neuberger’s speech reiterated the importance of a continued commitment to open courts as a way of achieving public confidence in our legal system, and how the increased use of ‘super-injunctions’ threatens these fundamental principles of justice. This concern holds especially true as UK courts seem to be expanding the scope of those cases that are now being granted super-injunctions – injunctions that were once used sparsely and only in limited contexts (we think).
‘Super-injunctions’ prevent journalists from reporting about the mere existence of a case before the courts – this includes a “restraint from publication of details of the injunction proceeds, application, hearing, proceedings or order” and effectively turns the entire process into a highly secretive procedure. They serve to inhibit freedom of speech by preventing the publication of matters relating to the case before the courts as well as any details about the injunction sought by the parties. The purpose is to prevent a form of 'jigsaw identification' of the parties by issuing an injunction 'contra mundum' (or 'against the world'). The effect is such that journalists are unable to directly or indirectly refer to details pertaining the case before the courts, or the injunction being sought by the parties.
While UK journalists have seemingly grown accustomed to these prohibitions (some having found creative ways to operate around these gag-orders), their existence brings to light concerns about the limits they create on freedom of speech and the right for the public to scrutinize judicial decision-making. As Lord Neuberger argued, “Open justice must however yield no more than strictly necessary to secure the achievement of the property administration of justice.” However it remains to be seen whether UK courts will continue expanding the cases to which super-injunctions will be granted, and at what point the courts will find that these ‘gag-orders’ have begun to unnecessarily trample on the fundamental right of free speech. This concern is exacerbated by the discovery of a new form of 'hyper-injunction' which "specifically bars a person from discussing something with members of Parliament, journalists and lawyers, except for his own defence lawyers."
These 'hyper-injunctions' are clearly effective – we are only just learning about these 2006 court proceedings and only because an MP has chosen to oust the courts with the use of his Parliamentary privilege. And while these draconian injunctions threaten to undermine the fundamental principles of justice and free speech, their increased used and expanding scope seem to indicate that these draconian 'gag-orders' are likely going nowhere fast. As it stands, the list of cases that have been granted these injunctions include a professional football player’s personal life, an oil company and their toxic waste cover-up, and now in an ex-financier’s libel case. So how far is too far, and at what point has free speech has been frivolously compromised by these ‘super-injunctions’? And while these super-injunctions continue to be been used (the frequency of which is subject to pure conjecture and speculation) in the UK, practitioners and academics have suggested that they have never really gained popularity in Canada, although “they could be granted routinely without most of us being any wiser.” Here’s hoping that they stay across the pond.