Case law on injunctions is still the preserve of the few

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Parent Category: Justice & Security

Category: Law Commentaries

Created on Monday, 08 August 2011 00:00

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Case law on injunctions is still the preserve of the few

Making court data public would allow media coverage of superinjunctions to be challenged

Judith Townend

Legal data collection should happen as a matter of course. Lawyers and judges often scold the media for its representation of legal cases. "There are lots of judgments that have been criticised where it's quite apparent that people haven't read them," Mr Justice Eady told legal journalist Joshua Rozenberg earlier this year.

Eady, who has heard numerous libel and privacy cases, is probably right that some journalists had not read the full content of judgments freely available on the BAILII website before reporting on the various so-called superinjunctions of 2009-11. But injunction decisions and applications are not always made accessible to the public.

Comprehensive information about case law is difficult to come by. A good deal is locked behind paid-for subscription services, or may not exist in written form. Certain legal statistics cannot be examined because no-one has collected, categorised or counted.

It is feasible that some newspapers, with their commercial agenda, would not make use of such data, if it were at odds with the popular editorial narrative. Perhaps not, but it would enable members of the public, researchers and bloggers to interrogate journalists' analysis and challenge misrepresentations where they occur.

The superinjunction row brought the courts data issue to the fore: the master of the rolls could not tell us how many "super", or anonymised privacy, injunctions there had been because he simply did not know – and nor did the Ministry of Justice.

In the absence of solid official data, individuals or journalists have gathered their own. As the Times' legal editor, Frances Gibb, described in this colourful profile, the media law fanatic and "observer" Benjamin Pell has helped plug the judicial information gap, especially in privacy and libel cases.

Guardian Law has played its part too: a new table of "gagging orders" is not guaranteed to be complete but it does an excellent job of collating important details about 38 cases from 2007-11, sourced from the Inforrm blog, BAILII and the RPC Privacy Blog.

The positive news is that the justice ministry has been given the task of counting superinjunctions and anonymised injunctions in privacy proceedings. The pilot scheme should demonstrate that it is possible to release data about sensitive cases without revealing confidential information.

This type of data collection should not require a specific recommendation, instigated by a special committee, however. It should happen as a matter of course.

In the past, Eady has also complained of the media's unfair portrayal of London as a libel tourism destination. Why then do the ministry and the Courts and Tribunals Service not provide us with a full dataset with which to assess the situation for ourselves?

Several freedom of information requests, made by the computer programmer Mark Goodge and me, recently revealed exclusive contracts between the ministry and two courts data suppliers, BAILII and Courtel. The former is a non-profit organisation, supported by various legal groups and individuals. The latter is a limited company based in Surrey.

I do not object to these services existing – and carrying out English legal research without BAILII's service would be unimaginable — but I do not see why the providers should have exclusive rights to the data. As Goodge has argued, a data monopoly "prevents non-profit organisations, community groups and individuals from using the data effectively".

The Cabinet Office open data consultation, launched last week, suggests there should be a "pull" (an enhanced right to data) and a "push" (a presumption of publication). Bloggers and researchers are starting to claim a public right to access legal information, but the ministry also needs to share case details – to avoid an open data tug of war.

If the ministry and courts service are to meet the government's proposal to make open data "real", they need to free English court listings, applications and judgments.

Judith Townend is a freelance journalist and researcher. Her doctoral study at the Centre for Law, Justice and Journalism, City University London, examines legal restraints on the media


Source: The Guardian UK, 08 August 2011