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Journalists who report on Parliamentary debates on subjects covered by court gagging orders could be in contempt of court, a committee of judges and legal experts has said.

Master of the Rolls Lord Neuberger headed the committee, which today published a report into the increasing use of injunctions and super-injunctions to keep the identity and actions of famous people secret.

Injunctions cannot bind members of Parliament during debates in the House of Commons or House of Lords, but the committee's report said that those who report on those debates are in a less certain position.

"Where media reporting of parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order," the Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice said (112-page/537KB pdf).

Journalists can report on other kinds of material which would otherwise not be recountable if that material is discussed in Parliament, the report said. "There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies," it said.

The report suggested that clearer rules should be laid down, perhaps similar to the rules that allow contemporaneous reporting of what is said in court. "There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings," it said.

Absolute parliamentary privilege is extended to Hansard, the medium that records what is said in Parliament and to other verbatim reports of parliamentary discussion.

The issue of legal protection given to the media in reporting comments made under parliamentary privilege rose to prominence on Thursday when the media reported comments made under parliamentary privilege by Lord Ben Stoneham who had said it was in the public interest to know whether Fred Goodwin, the former head of the Royal Bank of Scotland, had had an affair.

The report said that there should be more limits than there are currently on the operation of injunctions and on the secrecy surrounding trials involving them.

Journalists should only be banned from attending injunction court proceedings when it is "strictly necessary to secure the proper administration of justice," the report said. "Applications for such derogations must be supported by clear and cogent evidence, and should be subjected to careful scrutiny by the court."

"Where a derogation is appropriate the court should consider what information can properly be put into the public domain," it said. "Without such consideration it is not possible for the court to ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice."

When deciding whether to issue injunctions on privacy grounds courts have to balance the rights to a private life a person has under the European Convention on Human Rights with the right the media has to free speech also guaranteed by the Convention.

Only judges can properly rule on the merits of a court injunction on that basis, the report said.

Guidance should be issued on the procedures for applying for banning orders covering the period before a trial, and the guidance should state that only in rare cases can people avoid telling the media that they are applying for a court banning order, the report said.

Judges should not issue super-injunctions automatically, the report said. "Super-injunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent."

"The Committee’s recommendations, once implemented, are intended to ensure that the proper balance is struck between the interests of claimants and defendants (who are usually media organisations). They should also ensure that exceptions to the principle of open justice will only be allowed when they are strictly necessary in the interests of justice, and that when allowed they will go no further than is strictly necessary," the report said.

The report follows a surge in prominence of the issue of injunctions and the way judges balance people's privacy rights with freedom of expression rights.

Culture Secretary Jeremy Hunt has said that the Government will not introduce a privacy law but instead issue new guidance on how judges should interpret the UK's Human Rights Act, the law that gives "further effect" to the entitlements set out in the European Convention on Human Rights, according to a report in the Daily Telegraph.

Hunt had previously said that social networking sites and the internet were "making a mockery" of UK privacy laws. His comments followed anonymous postings about celebrities' private lives on micro-blogging site Twitter that claimed to reveal the identities of celebrities who hold super-injunctions.

Newspapers reported details of the postings but only revealed some of the names the anonymous user had posted. The paper reports said Jemima Khan, socialite and human rights campaigner, had been photographed in an "intimate" moment with motoring journalist Jeremy Clarkson. Khan said the reporting of her name proved that she did not possess a super-injunction.

Last week a judge specifically named Twitter as a banned medium for revealing details banned by a court order in what is thought is a UK first.

A court has also granted an unnamed footballer the right to anonymity. The footballer, who is said to have had an affair with former reality TV contestant Imogen Thomas, has asked the court to grant him access to the email and text messages of Sun newspaper journalists, including freelance columnist Kelvin MacKenzie's records, in order to establish if they have broken the court's ban on naming him.

The European Court of Human Rights also recently rejected a case brought by former motor racing boss Max Mosley that would have forced media editors to tell people before publishing revealing details about their private lives.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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