ZAM v CFW & TFW: “suing for libel in secret”

David Leigh has written in the Guardian today about a “superinjunction” granted in a libel case, preventing publication not only of allegations made about about the claimant, known as ZAM, but of his identity. He’s also tweeted about it, suggesting the courts have gone “censorship mad”.

Fair enough: this is a story worth reporting, and that’s his view. Unsurprisingly perhaps, John Hemming MP is

unsure how this really helps. The interests of confidence in justice are not being served. The fact that someone went to court to stop people repeating lies about them is not a fact that needs to be hidden even if it is best that people don’t repeat the lies.

The entire issue of “superinjunctions” and “hyperinjunctions”, as John Hemming has called them, is an important one, and journalists are right to report on them within the law.

But before concluding that the courts have gone “censorship mad”, it’s worth asking ourselves what’s been done here, and why. Might there be any good reason for ZAM’s identity to be protected?

It’s worth pointing out that this is not a case in which anyone is trying to prevent the reporting of the fact that an injunction has been granted, as was the case with Trafigura, for instance. On the contrary, the fact of the injunction and the reasons why it – and anonymity – was granted are entirely in the public domain. The use of terms like superinjunction and hyperinjunction may not be completely helpful if people use them to cover a multitude of things.

Mr Justice Tugendhat’s reasons for granting an injunction and anonymity to ZAM are set out in his judgment, and are worth looking at. One Brick Court chambers have given a summary of the case on their website (hat tip to Matthew Taylor for pointing me to it).

Tugendhat J says he has no doubt the allegations that have been made about ZAM are defamatory (para 24 of the judgment) and that ZAM has provided evidence in support of his claim that they are false (para. 20). He says (para. 29) that the defendants did not come to court to argue against the injunction, although they could have done, and (paras. 21 and 24) that they have neither told the court their allegations are true, nor claimed they have any other defence to the libel action. He says (para.25) there are strong grounds for saying that the allegations constitute harassment under the Protection from Harassment Act 1997, and that (para. 27) there is a strong case for believing the case to involve an attempt at blackmail.

Explaining the grant of anonymity, he says (paras. 27 and 28):

it would frustrate the purpose of the injunctions sought if the Claimant’s applications had the effect of making public the very allegations in respect of which he is seeking relief by way of injunction …

It was also submitted by Mr Spearman that if anonymity were not to be ordered, the fact that the Claimant has had to seek relief would be capable of being made a story in its own right, and would be likely to lead to widespread speculation as to what story he has been concerned to prevent the Defendants from telling. It would be unfair to him (and his family) that, as the price of preventing the publication of allegations that (ex hypothesi) he is entitled to prevent, he (and his family) should be exposed to invasive speculation of this sort. In this particular case, the public interest in open justice is better served by granting anonymity to the Claimant and revealing such detail about the subject matter of the action as is contained in this public judgment.

The defendants have the right to apply to have the court’s order changed.

I don’t know anything about ZAM or this case beyond what’s in the judgment. But based on that, there’s no reason to think this is an outrage of any kind.

If you think the law has any business at all protecting reputations – and most people agree, once they think about it, that you should not just be free to spread seriously damaging claims about others without any justification – then a case like this seems to me a pointer to a better future, not a worse one.

What’s needed is strong protection for free speech if what you say is reasonably defensible, and simple, cheap, effective and accessible remedies to protect people from indefensible allegations, without bankrupting honest journalists. The approach in this case seems to me closer to that ideal than is the traditional English libel game-show, in which true scandals have been covered up and false accusations have often not been prevented, all amid the excitement of an absurd compensation lottery.