U.K. court enjoins the Wall Street Journal’s speech

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On Thursday, October 17, 2013, the Wall Street Journal (WSJ) published the names of individuals allegedly involved in the European Libor Scandal.  After the WSJ published the names of those allegedly involved in the scandal, a British court issued an injunction (pdf) requiring the WSJ and its European banking editor, David Enrich, to remove the article.  The court justified this temporary injunction on the basis that British prosecutors had not finalized the list of individuals to be named in the indictment and that a premature publication before formal indictment would interfere with the investigation.

The British court essentially restricted an American company’s speech on the internet through an injunction that would be in violation of the First Amendment of the U.S. Constitution.

The injunction prohibited the WSJ from publishing the names and details about the investigation in print or television broadcast in England and Wales.  The investigation revolves around the Libor Scandal, which originated in 2005 when certain traders and banks allegedly manipulated the Libor interest rates at the requests of traders and other banks.  Libor is an interbank interest rate that is considered one of the most important interest rates in both the European and international financial systems.

The order also prohibited the WSJ from publishing this information anywhere on the internet.  A breach of the injunction would result in imprisonment, asset seizure, or a fine against the WSJ and Mr. Enrich.  The WSJ and Mr. Enrich fully and quickly complied with the injunction by only publishing the names in print in the U.S. and Asia.

There was no dispute as to whether the British court had the power to enjoin the WSJ from publishing these names in print form, but the injunction does pose a dilemma for internet publication.   The British court essentially restricted an American company’s speech on the internet through an injunction that – if issued in a U.S. court – would be in violation of the First Amendment of the U.S. Constitution.

The U.K. does not have a written constitution that enumerates the powers of the government.  Rather, it has an unwritten constitution which is based on the English Common Law.  This common law provides citizens with a general freedom of speech right with no specific freedom of the press.  The press’ freedoms are generally subject to the same privileges and restrictions of a normal citizen; therefore, a U.K. citizen’s freedom of speech is not explicit and may be subjected to government limitations and control.

Since the adoption of the Human Rights Act, privacy rights in the U.K. have become more robust.

Although the British constitution is unwritten, the U.K. adopted the Human Rights Act of 1998, which includes all freedoms covered under the U.S. Constitution’s First Amendment.  The purpose of the Human Rights Act is to codify the protections of the European Convention on Human Rights into U.K. law.  The Act provides several fundamental rights and freedoms, including the right to privacy, freedom of expression, and the right to a fair trial.  But, because these freedoms are provided by law rather than a written constitutional provision, they are more susceptible to change.

Since the adoption of the Human Rights Act, privacy rights in the U.K. have become more robust.  The Act has expanded the privacy rights of individuals, even extending these rights to celebrities and public figures.  For example, in Campbell v. MGN Limited, the House of Lords held that the privacy of a famous model outweighed a journalist’s right to speech.  The specific publication was enjoined from the publishing pictures that were taken of the model leaving a rehab clinic.  Thus, the court found that a person’s privacy rights may outweigh another’s right to speech.

The U.K. also recognizes the fundamental principle of open justice (pdf).  Open justice embodies the idea that court proceedings should be open to the public and journalists should be permitted to report on these issues as long as it does not “frustrate or render impracticable the administration of justice.”  Even though European courts provide a general freedom of speech in matters concerning criminal investigations and court proceedings, they do permit injunctions in cases where they find it necessary to protect national security, the administration of justice, or personal privacy.

The potential interference with justice and invasion of privacy outweighed the freedom of the press.

When the British courts rule on an injunction to enjoin speech, they employ a balancing test that weighs the freedom of speech (pdf) against national security, public order, and an individual’s right to privacy and reputation.  When balancing these interests, an individual’s privacy and any national security interests are given significant weight and they often outweigh the press’ right to publish that information

To return to the Libor case, there are two plausible reasons why the judge issued the temporary injunction.  First, there was a possibility that releasing the names would constitute a direct interference with the “administration of justice” by interfering with and jeopardizing the government’s investigation; and second, in order to prevent an intrusion into the private lives of those persons who may or may not actually have been named in the indictment.  Despite the fact that the judge did not find a basis to renew the injunction, the initial injunction was justified by the potential interference with justice and invasion of privacy outweighing the freedom of the press.

Generally, the only justification for the government to preemptively enjoin the press has been limited to issues involving an imminent threat to national security.

Unlike in the U.K., the Supreme Court of the United States has held that prior restraints of speech are subject to the most strict scrutiny.  In Nebraska Press Ass’n v. Stuart, the Court held that “any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity,” and that prior restraints on publication “are the most serious and least tolerable infringement on First Amendment rights.”  Generally, the only justification for the government to preemptively enjoin the press has been limited to issues involving an imminent threat to national security.

Even when speech involves matters of national security, the Court is still reluctant to preemptively enjoin speech.  In New York Times v. U.S., the Court held that the government was not permitted to enjoin publication of the Pentagon papers, a classified study concerning U.S. activity in Vietnam.  The government claimed that restraining the publication was necessary to protect national security.  The Court, however, held that a prior restraint on speech was not permitted due to the government’s inability to meet its high burden of proving an imminent threat.

Another example can be found in criminal cases where one party moves for a gag order, which enjoins the parties and witnesses from speaking to the press.  U.S. courts generally guard the First Amendment by applying the standard of whether there is a reasonable likelihood that pretrial publicity will prejudice the defendant’s right to a fair trial.  The freedom of the press is considered to be so important that prior restraints are examined under the backdrop of how they will affect the press.

In In re Application of Dow Jones & Co., Inc., for instance, theU.S. Court of Appeals for the Second Circuit held that a gag order enjoining the prosecutor from leaking grand jury information was permissible because it restrained the trial participants rather than the press itself.  The press was not directly prohibited from speaking and could not be liable for publishing the information, making the gag order considerably less restrictive of First Amendment rights.

The internet’s lack of physical boundaries has become especially important as print media vanishes and online speech becomes more pervasive.

Because there are no physical boundaries of the internet, other countries’ limitations on speech may present a threat to American citizens’ First Amendment rights.  The Libor case injunction illustrates this point perfectly: while the injunction may have been permissible under British law, if it were issued in the U.S. it would undoubtedly have been deemed a violation of the First Amendment.  Similar situations will become more common as print media vanishes and online speech becomes more pervasive.  The rise of the digital age of news media will likely continue to raise concerns as to the extent in which other countries may limit speech of U.S. citizens and companies in ways that would seemingly violate the First Amendment.