Ministers consider new privacy law

The government is to consider introducing new laws which would give judges clearer guidance over the awarding of gagging orders.

Legislation could be the “best way” of dealing with a situation in which celebrities can win injunctions, only to then have their name revealed on social networking websites, Justice Secretary Ken Clarke has said.

Shadow justice secretary Sadiq Khan had called on Mr Clarke to give “clarity and guidance” on the issue to judges during an exchange at Commons question time. He added that it was important to get the right balance between freedom of speech and right to privacy.

Mr Clarke replied: “We will consider these matters and indeed it is probably right to say that Parliament passing a Privacy Act might well be the best way of resolving it.

“But I think we need to get somewhat nearer to a consensus and one needs to know exactly how you’re trying to strike this balance before something is submitted to the judgment of Parliament.”

He added: “There’ll never be unanimity on all these judgments, precisely because it is so difficult to balance the competing parts of the Convention on Human Rights and the competing interests involved.

“There have been cases where we certainly need to know, where people are disposing of waste material that they’re dumping off the coast of Africa, which is easy in one direction.

“On the other, every time I watch a football team I don’t think I necessarily need to know about the sex life of each of the players.”

Sarah Jackson, Senior Solicitor in IBB’s Commercial Dispute Resolution Team, comments: “The issue of injunctions and privacy has caused huge controversy in the press in recent weeks. There is a case for injunctions to be applied in exceptional circumstances, which is traditionally what the Judiciary has done.  

“The enactment of a Privacy Act may well seek to clarify the balance of rights between Article 8 (right to privacy and family life) of the Human Right Act 1998 and Article 10 (freedom of expression) but it will be difficult to prevent disclosure on social networking sites like Twitter and Facebook.  

“Obviously, if an individual does disclose information online which is the subject of an injunction, they may be found to be in contempt of court. However, the trouble that the holders of injunctions face is locating that individual and bringing them to Court. This is especially tricky if the website is based abroad and does not co-operate with demands to disclose the identity of the individual.  

“Even then, as many online commentary is anonymous it is often practically impossible to track down the actual individual behind the comments. It is difficult to envisage how the UK government will legislate to control commentary by anonymous often foreign based individuals on websites which are based out of the jurisdiction.  

“The outcome of the review by Jeremy Hunt and Ken Clarke will be keenly awaited.”

IBB Solicitors has niche expertise on applications to the Court of Protection and three of our solicitors are members of the Court of Protection’s panel of professional deputies. For advice, contact a member of the Wills, Trusts and Probate team, call us on 01494 790007 or email enquiries@ibblaw.co.uk.