It is well established that when an injunction prevents one party from publishing confidential information, third parties who are aware of it can be guilty of contempt of court if they publish that information.
This is the case even though the third party is not named in the injunction. In a recent case, Attorney General v Punch Limited and another, the House of Lords emphasised just how wide ranging the application of injunctions are to third parties.
The injunction in question was against David Shayler, the former MI5 officer. It restrained him from disclosing information obtained in the course of his employment relating to the Security Services.
Shayler subsequently wrote an article for Punch which contained information covered by the injunction. Punch’s editor, James Steen, contended he had thought the purpose of the injunction was to stop national security being endangered, and by publishing the article he had not intended to damage national security, and did not believe he had done so. Both Punch Limited and Steen were found guilty of contempt of court at first instance.
On an appeal by Steen, the court held there had been no contempt, since Steen had not intended to interfere with the course of justice by disclosing matters that risked harming the national interest.
The House of Lords however, overturned this media friendly ruling, and held that it was for the court to determine the manner in which justice should be administered. The purpose of the court granting the injunction was to ensure that confidential information was not disclosed pending its determination of civil proceedings against Shayler.
Steen, by taking upon himself the responsibility for determining whether or not the information he intended to publish risked national security, and publishing the article in breach of the injunction, wilfully interfered with the administration of justice by doing precisely what the order was intended to prevent, thus thwarting its purpose.
Lessons learned: The House of Lords stressed that it is for the court to determine the purpose of an injunction and not a third party, such as a journalist.
A third party, in publishing an article in breach of an injunction, may well be liable for aiding and abetting a contempt. However, a publication which thwarts the court’s purpose in granting an injunction will, in itself, be regarded as an interference with the administration of justice, and the individual responsible may well be found personally guilty of contempt.
It is always open to a third party to apply to vary an injunction prohibiting publication where they believe it cannot be justified. What they must not do is disregard it in the belief that what they are publishing can cause no harm.
Tiffany Evans is a trainee solicitor in the media group at Lovells