Free Speech: a Delicate Balance

My column in the print edition of Standpoint this month explains how the Court of Appeal’s recent judgment in a libel case has shifted the balance in favour of writers.

One of the judges in the case, Lord Neuberger, gave a lecture this week about freedom of expression. Although there was nothing in it that struck me as controversial, he did take the opportunity to outline one of the questions to be considered by the committee he is chairing on super-injunctions.

It relates to the rights of third parties, such as newspaper publishers.

The right to open justice, as part of the right to fair trial, is an indivisible right. It is a right applicable equally to claimants and defendants. How is this principle squared with, as in the John Terry case, the fact that no named individual is before the court or named as a respondent? Where the respondent is genuinely unknown the court must of course rely on the applicant disclosing the issues both in favour and against granting the order. But what of the situation where the applicant does not know who the respondent is but has in mind a number of other individuals who they intend to serve with the order? Should they be required to ensure that those individuals are given a proper opportunity to make submissions to the court? And how? At the time the initial without notice application is made? Or at a later on notice hearing after the order has been made?

 All responses gratefully received.

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