Report acknowledges difficulties in enforcing super-injunctions on websites

Enforcing a super-injunction on a website was a 'more difficult' challenge but the resulting breach was 'by no means the same intrusion of privacy as being on the front page of a newspaper', Lord Neuberger has said.

Reporting as head of the committee set up to review super-injunctions, the Master of the Rolls confirmed that derogations to the principle of open justice should only be allowed in exceptional circumstances but suggested it was not feasible at this stage to make recommendations on the enforceability of super-injunctions on internet-based entities such as bloggers or twitter users.

There would be no reason to grant an injunction if news was genuinely 'out there', Lord Neuberger said, but if news had only appeared on a few blogs there could still be a reason to do so.

Referring to some of the appeal cases where he upheld the granting of injunctions, he said it was 'more difficult' to stop publication on the web but he justified the committee's position saying that subsequent reports of these cases on websites that purported to reveal the identity of the individuals involved were inaccurate. 'The web is not a reliable place,' he said.

'The web adds to the difficulties in enforcement, there is no doubt about that,' he added. If the information goes on the web this is by no means the same intrusion of privacy as being on the front page of a newspaper,' he said. 'I understand the media's concern and it is one we are going to have to face.'

The Lord Chief Justice, who was an observer on the committee, added that national newspapers should remain the focus of privacy injunctions until technology caught up with the internet and made it possible to enforce super-injunctions on web-based organisations. The reason, he said, was that 'people are more likely to pay attention to national newspapers'.

But Lord Judge suggested the regulation of the internet should be considered in the longer term. 'Why are we assuming that the world of communications can never be brought under control by other technological developments?' he asked. In the same way that it was now possible to stop the circulation of pornographic material involving children '“ or at least reduce the risk of their circulation '“ it ought to be possible with injuncted material, he said.

Speaking at the press conference accompanying the publication of the report, Lord Neuberger also sought to address media concerns that super-injunctions were granted behind closed doors without the press being informed.

The Master of the Rolls said he was anxious that hearings should take place in public and that this should remain the rule in the Court of Appeal, where sensitive information could be discussed by reference to the documents containing this information. But he said this was not always feasible with initial applications where 'things tend to be rushed' and it was more difficult to hear the application in public. 'If possible it will be, but often it can't.'

Lord Judge added that the issue of open justice and super-injunctions wasn't just about the media. People applied for super-injunctions to protect themselves from blackmail or protect their children from media intrusion, he said.

Talking directly to the press audience he said that most of the time where an injunction involved the media, the respondent newspaper was there and had been given notice. The reason why the press rarely oppose an application or appeal it, he suggested, was because they had been told by their legal advisers that the application was 'perfectly valid under current privacy laws'. If the media were unhappy with the state of privacy laws, this was a matter they should take up with parliament, he said.

Neither the Master of the Rolls nor the Lord Chief Justice gave details of how they proposed to tackle the separate issue of parliamentary privilege other than say they would have conference with the speakers of both houses. Only last week Lord Stoneham's intervention in the Lords led to the partial lifting of an injunction banning the reporting of allegations that former RBS chief Fred Goodwin had an affair with a senior member of staff.