Guy tagging into the building.

No injunction for local authority that failed to give notice to media

12 January 2011. Published by Keith Mathieson, Partner

A judge has refused to make an order gagging media organisations who were not given proper notice of the application for the order.

In Re Jane (a fictitious name) (A Child) [2010] EWHC 3221 (Fam) Holman J made an order restricting reporting about a child subject to an interim care order but the order was expressed to bind only those organisations to whom the applicant local authority had given notice.

The case concerned the small child of a woman who had been the subject of considerable media attention.  The media were also interested in publishing information about the child.  The local authority obtained an interim care order and placed the child with foster parents.  It also applied for an order preventing the media from identifying or publishing information about the child.

Section 12(2) of the Human Rights Act 1998 provides that in cases that might affect freedom of expression the court must be satisfied, before granting relief against a person not present or represented, that the applicant has taken all practicable steps to notify the respondent; or that there are compelling reasons why the respondent should not be notified.  In this case, the local authority gave notice of its application to the Press Association's CopyDirect division, which in turn gives notice through its Injunction Alert Service to the legal departments of national news organisations.  The local authority did not, however, give notice to those organisations such as the Guardian and Daily Telegraph which do not subscribe to CopyDirect.  Nor did it notify local news organisations.   While the judge was satisfied that proper notice had been given to all those media organisations that subscribe to CopyDirect, he was not satisfied that proper notice had been given to other organisations.  He therefore declined to make any order affecting those organisations.

According to Mike Dodd, editor of Media Lawyer, the decision by Homan J is believed to be the first published Family Division judgment in which a judge has declined to issue an order binding media organisations which were not given advance notification of the application.

The judge proceeded to make an order that restricted the publication or broadcast of any picture, photograph or image of, or including, 'Jane' which was not already in the public domain prior to the making of the order.  He accepted there was nothing he could sensibly do about pictures already in the public domain:

Even in relation to a vulnerable child such as Jane, there is a point after which, frankly, one cannot shut the door on a horse which has already escaped. Since pictures of her are already all over the press and on the internet, it does not seem to me that I can now sensibly, properly or justifiably restrain further publication of those pictures, still less attempt now to have those pictures removed from the web.

See further section 2.5.1, 3.3.7 and 3.9.1 of the Privacy Law Handbook