To injunct or not to injunct
You may not like what the journalists are planning to write, but is it ever appropriate to threaten an injunction to prevent publication?
Put the words ‘PJS’ and ‘injunction’ into a Google search and the first thing that comes up is a comment on Twitter: I’d of (sic) had no interest in the pjs and yma story if not for their injunction. They effectively made me search out the truth.
The injunction taken out by ‘PJS’ and ‘YMA’ against The Sun on Sunday in 2016, to kill a story about a married celebrity and a threesome, remains a salutary tale of what not to do in such a case.
In these days when A-listers and sex scandals have become frankly commonplace, in the case of PJS, it was the ultimately the existence of the injunction that propelled the story to headline news.
A YouGov poll at the time found that 25 per cent of respondents already knew who PJS and YMA were. For those who didn’t, it wasn’t hard to find out. The identities of the pair had already been revealed in a US newspaper before the story was picked up by papers around the world, including even Scotland, and repeated numerous times on social media.
‘With PJS, everyone knew who it was, so an injunction was granted but it was pointless,’ says Matthew Dando, media lawyer at legal firm Wiggin, which exclusively represents the media in such disputes. ‘Plus England and Wales have a different legal system to Scotland, so there was this ridiculous situation where the person could be named in Scotland but not south of the border.’
This is a clear-cut case of when an injunction should not have been sought, say PRs who specialise in disputes with media outlets. As Gus Sellitto, chief executive of the Byfield Consultancy, says: ‘If I had been advising in that case, I would not have advised an injunction, I would have looked at a PR strategy to mitigate or soften the story.’
These days, injunctions and so-called ‘super injunctions’ taken out on privacy grounds by celebrities are much fewer and further between than during their heyday of the 2000s and early 2010s, when media lawyers had rotas for Friday injunctions.
While injunctions are still big business for megamedia firms such as Carter-Ruck – its head of media law Nigel Tait says he still spends many weekends threatening or filing injunctions – Wiggin, for the defence, no longer has to run rotas as activity has died down so much. ‘The Court records show there are now fewer than a dozen injunctions enforced per year these days,’ says Tait.
This is partly because of a change in the Defamation Act in 2013 which removed the right to trial by jury, meaning that media outlets no longer have to second-guess what a jury might decide in a defamation case and can therefore be more confident of where they stand.
However, Rachel Atkins, partner at libel firm Schillings, says injunctions are making a comeback: ‘It does feel that injunctions are becoming more popular again. Years ago, it was all about celebrities, then there was a backlash against the use of injunctions and it slowed down. But now it is picking up pace again’
Dando adds: ‘There is a move towards bolstering privacy rights and I would expect people to use that to prevent news. The tightening of the data protection laws is a big thing.’ This means that corporations can fairly easily use technical arguments to secure an injunction where the story, even if it is true, has been obtained in a way that breaches either data protection or confidentiality rules.
In one such case last year, the UK hedge fund Brevan Howard, which manages assets for more than 200 institutional investors, was able to argue that Reuters had no right to run a story because it included confidential information the fund had sent to 36 of its investors. Reuters unsuccessfully argued that the story was in the public interest but the judge disagreed that this outweighed the fund’s and its investors’ right to confidentiality.
Furthermore, with the tightening of data protection laws and the advent of a new wave of social media publishers, more and more corporations are finding injunctions a useful way to silence dissent and chatter about their operations and dealings.
‘Injunctions have a different effect on different types of media outlet,’ says Dando. ‘Big outfits have got teams of lawyers ready to go and can defend themselves. But they have a much greater effect on bloggers, activists and NGOs, for example. They are much more easily cowed by the threat of an injunction.
‘Corporations undoubtedly threaten injunctions to put a stop to digging by small activists and NGOs. It can go either way. Some just don’t have the wherewithal to fight it out. Others will fight on, but it is a huge undertaking.’
Richard Elsen, founder of reputation management specialists Farraline, adds: ‘Injunctions are being used more to silence bloggers and activists. If a judge grants an injunction, you can challenge it, but it will cost you the same as it costs a corporation. If you don’t have deep pockets, you can’t appeal it. I have seen cases where people have ended up losing their homes. For the corporation, the point is to use that blogger as a whipping boy, to set an example to anyone else.
‘These sorts of injunctions really stifle debate. It often means local press and social media can’t report, for example, a corporation’s questionable environmental record. Then that bit of news won’t go higher up the chain to the national press and wider mainstream media.’
The fracking debate is a case in point. In recent years, several firms, notably Cuadrilla, have attracted criticism and attention over the injunctions they have taken to prevent activists from highlighting and protesting their activities.
The ease with which a corporation or individual with deep pockets can get an injunction means this is an effective means of bolstering communications strategy if push comes to shove. ‘Acting with speed and urgency is crucial in getting an injunction especially outside of normal working hours as we frequently do,’ says Tait. ‘I have previously obtained one in two hours.’
Technically, once an injunction has been granted, it proceeds to trial. However, most cases are settled before this happens, explains Atkins. If the story has not yet been published, the plaintiff seeks an interim injunction. If it has already been published, a final injunction – to prevent further reporting of a story – may be granted along with damages.
Seeking an injunction is not without risk, however, even if it has been sought justifiably. The greatest risk is that the act of seeking an injunction makes the story many times bigger than it might otherwise have been.
When Trafigura, the energy company, successfully sought a super injunction (one which cannot be reported) against The Guardian in 2009, it unwittingly triggered a five-week process during which the firm received more publicity about a toxic-dumping incident in Ivory Coast than it bargained for. The incident, which had been the subject of a personal injury case, was being investigated by the newspaper, which was unable even to tell readers it had been injuncted.
Meanwhile, details of the report on the incident – known as the Minton Report – were published in other European countries, as well as on Wikileaks.
Eventually, an MP tabled a parliamentary question which revealed the existence of the injunction. The Guardian was advised it could not even publish a story about that and, instead, put out a front-page story saying it had been prevented from publishing the proceedings of Parliament, a right enshrined in democracy since the eighteenth century. Of course, this story went viral and within hours millions of people around the world knew not only why the paper had been injuncted, but also about the Minton Report itself. Trafigura became one of the most searched-for terms on the Internet.
MPs were furious that a company and its lawyers had tried to stop a newspaper reporting parliamentary proceedings. Trafigura even made an attempt to prevent MPs from debating the Minton Report but later conceded defeat. Its lawyers Carter-Ruck even wrote to The Guardian stating that it should regard itself as ‘released forthwith’ from reporting restrictions.
The perception of a corporation bringing an injunction is that it is not open about its issues. This can come back to bite you
Trafigura is an extreme example, as it snowballed to the point where lawyers were trying to gag Parliament, but the lesson is the same. The risk is that you fail to get an injunction, get named and the story becomes much bigger than it might have been.
In cases where a standard injunction is used – one that may be reported – the consequences are even more predictable. When David Beckham, for example, got an injunction to kill a story suggesting he was angry about not getting a knighthood, the paper was able to publish a story saying We are not allowed to tell you that an unnamed person has taken out an injunction over this story…
‘Everyone ends up speculating about who that could be, and it doesn’t take long for the facts to get out,’ says Sellitto.
This is the ‘Streisand effect’, named after the famous 2003 case in which Barbra Streisand tried to remove an aerial photograph of her Malibu residence from a publicly available collection of 12,000 California coastline photographs. In seeking an injunction, the actress drew more attention to the issue, causing widespread searching for pictures of her home on the Internet.
Another unintended consequence is negative perception of your company or brand if you do seek an injunction. As Elsen says: ‘The perception of a corporation bringing an injunction is that it is not open about its issues. This can come back to bite you.’
Injunctions also run the risk of further piquing the interest of the journalist or publication involved or, worse, antagonising them.
‘From a PR point of view, if a corporation gets an injunction against a media outlet or pressure group, it can offer some protection but it also just antagonises everyone,’ Elsen adds. ‘And, when the injunction runs out, it is a free-for-all to report the story.’
So, when is it useful to threaten or take out an injunction? If you have a good case, it is likely the publication will back down at the threat of one, say lawyers.
‘Before applying for an Injunction, the client has to ask, whether they are entitled to a reasonable expectation of privacy and, if yes, will the public interest outweigh the client’s?’ says Tait. ‘We do file injunctions or threaten to against the tabloid press, for salacious stories et cetera. They usually back down unless they feel the story will be of particular interest to the public.’
When it comes to corporations’ use of injunctions, they can be useful where business interests and confidentiality are genuinely under threat. Tait says: ‘On the subject of corporates, they don’t have a right to privacy but they do have a right to keep information confidential. For example, if a senior executive leaves and takes a list of clients with him, he can be prevented from using it with an injunction. Or a senior director who has fallen out with a company might threaten to disclose confidential information to the media if he doesn’t get as much money as he wants. Mostly, they have employment contracts preventing this, but some might still use this as leverage to extort money.’
Atkins says: ‘Often publications will back down once you threaten an injunction. We’ve had quite a few this year so far – at least six and they were a mix of privacy and confidence. For example, one company wanted to protect an employee from being harassed by someone publishing things on the Internet. In that case we were able to get them to stop publishing and to take down what they had put on their website.’
Finally, if a story is clearly wrong but the publication refuses to back down, an injunction is almost certainly the only option. ‘We had a case a few years ago where a journalist had misread the accounts of a company and thought it was in crisis,’ says Tait. ‘Unfortunately for the journalist, he had missed a footnote in the accounts explaining that a section of profits had been moved to a holding company. We then had to threaten an injunction in that case.’
A journalist is looking at a company from a different perspective to the directors, so there is always going to be a tug of war
If a story is on social media, or likely to be, an injunction will only be useful where it has not yet gone viral, says Sellitto.
‘You can nip it in the bud,’ he adds. ‘This is where PRs and lawyers have started to work much more closely. A lot of lawyers have rebranded themselves as Reputational managers: this is a real development over the past four or five years.’
Often it will not be in your interests to use an injunction, however, particularly if there are sensitive circumstances.
‘Where possible, we try to go in gently and reasonably – there are some journalists who will realise their story is affecting a lot more people than just the subject and will back down. Going in aggressively with an injunction from the outset might not work; we judge it on a case by case basis.’
Sellitto adds: ‘We all have different ways of viewing the world. A journalist is looking at a company from a different perspective to the directors, so there is always going to be a tug of war. You try to win through a gentle PR approach. I always say to a client, you are dealing with a journalist here, a person, and you want them to see our side of the matter, so you should be as unaggressive as you can.’
Finally, consider the lay of the land. ‘If you have someone in outer Mongolia using information they are not entitled to use, are you really going to be able to enforce your injunction?’ asks Atkins.
‘Injunctions often don’t work in the end because once the injunction is no longer in place, the media can pounce,” explains Elsen. ‘Then they end up having to do a mea culpa, which they probably should have just done in the first place. I would say to a client, what is the issue or problem from the corporation’s point of view? If it is a group or an individual where there is malice, then okay go for an injunction. But all too often injunctions become the first line of defence. Proper use of communications and explanation of events is better in the first instance.’