Reputation management is a topic discussed at the BPP Legal Awareness Society, in relation to “technology and the media”. It has been in the general news recently, as well as the specialist press. Legal tweeters have been discussing it in great detail, including the effect of international law (US SPEECH, US Communications Act and the European Convention of Human Rights) as well as domestic law on what can be legitimately reported. It has been a tough time for traditional professional journalists too, as well as the parties involved. The lawyers have worked very hard in avoiding becoming the news story, which is said to be ‘the first rule of journalism'; whether they have succeeded (with the antics of Carter Ruck LLP over Trafigura in the past, and Schillings over CTB and Glencore) is a different matter.

Question Time is a tough gig for anyone.  Charlotte Harris, a reputation management partner from Mischon de Reya LLP, faced questions inevitably on many media issues which had surfaced during this week.

The questions are difficult, but Charlotte clearly represented the law as it currently stands. For some reason, the whole issue has raised a lot of emotions about the privacy legislation, and the relationship between the legislature, executive and judiciary; and, equally worryingly, the relationship between the general public and lawyers.

1. Did John Henning abuse parliamentary privilege?

Last Friday saw the publication of Lord Neuberger’s report on “Super Injunctions, Anonymised Injunctions and Open Justice”.

This Report arguably could not come at a more sensitive time as more and more celebrities are requesting injunctions, so the story goes, and court orders are being flouted on Twitter and by MPs hiding behind parliamentary privilege.

Bloggers and users of social networking sites, such as Twitter, are being seen as a problem that “add to the difficulties of enforcement” of court orders.  Lord Neuberger said “modern technology is totally out of control… Anybody can put anything on it.”   The Report goes on to consider the issue of parliamentary privilege and is somewhat critical of MPs who use parliamentary privilege to flout court orders however, the Report does not appear to recommend any change to the law on parliamentary privilege.  Lord Neuberger said the law on parliamentary privilege is “astonishingly unclear” and asked whether it was a “good idea” for lawmakers to be “flouting a court order just because they disagree”. A vast majority of people have viewed that John Hemming MP did “flout” the law; parliamentary privilege is said to be defeated by malice, so it is imperative that John Hemming did not act with malice in making his brief remark in the lower House. There is a sentiment which many people believe that John Hemming MP did flout the law, and Charlotte Harris did make this opinion, in keeping with the heads of the Judiciary, very clear.

2. Are superinjunctions are a ‘secret justice’?

David Cameron has accused judges of making privacy law without Parliamentary authority. The aforementioned judicial report on media gagging orders conceded there has been an increase in U.K. courts granting anonymity orders blocking the media from naming people involved in lawsuits over news stories. According Lord Chief Justice Igor Judge at a recent press conference , the English law on privacy comes predominantly from the Human Rights Act [1998] which Parliament passed.

A superinjunction is an injunction which nobody is known about, such as Trafigura. Charlotte Harris has never been involved in a superinjunction. The central point is that superinjunctions are extremely uncommon, and Charlotte Harris made this central point clearly. Harris is completely correct to distinguish between normal injunctions, anonymised injunctions and superinjunctions. Senior U.K. judges have dismissed criticism over media restrictions, saying only two so-called super-injunctions were granted since January 2010, and neither are in force at the moment.

Interesting links: Schillings becoming the story
Injunction publicity backfires on celebrity law firm : http://www.guardian.co.uk/law/2011/may/24/injunction-publicity-backfires-law-firm

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Trafigura and parliament
Trafigura gag attempt unites house in protest : http://www.guardian.co.uk/media/2009/oct/13/trafigura-carter-ruck-gag

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