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Inforrm Blog: Superinjunction decision raises free speech conundrum

November 24th, 2010Posted by in Editors' pick, Legal

Last week Journalism.co.uk reported that a superinjunction preventing news organisations from naming Take That singer Howard Donald had been lifted by the court of appeal.

It means that the media can report the identity of the claimant, Donald, in the case, but an order banning former girlfriend Adakini Ntuli from selling her story remains.

Commenting on the decision in an opinion piece on the Inforrm blog (the International Forum for Responsible Media) Charlotte Harris, the head of media at JMW Solicitors LLP, who represented Ntuli in the case, discusses her view on the impact of the decision.

While it may appear at first a success for the free speech cause, she says, the decision presents a set of new difficulties for defendants and claimants in such cases.

In Ms N’tuli’s case, part of her story has been made public but she is prevented from addressing any criticism levelled at her, addressing any speculation or responding fully to press statements made that may be incorrect. Ironically her freedom of speech is more important now then it was back in March when the injunction was first served on her.

The assumptions made about her untold story are now assumptions made about her. Ms N’tuli cannot properly defend herself. She cannot say what she really intended to publish.

…So what of the future claimant? It is going to be harder to secure superinjunctions, anonymised injunctions or, it now seems, to keep an interim injunction in place unless the claimant’s case is proceeding at reasonable pace. The lifting of an injunction obtained, or the revelation of who the parties are can draw further attention to a story and pour fuel on a scandal. I would predict that until there is a clearer picture as to what on earth is going in the Queen’s Bench Division, it is not just defendants who are forced to be brave, but claimants too. If injunctions are to be de-anonymised then it is a lose/lose situation. It might be better to manage the client’s reputation and deal with a scandal through the libel courts.

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