The top judge in England and Wales warned British lawmakers on Friday to think carefully before using their Parliamentary privilege to circumvent court orders that block media from reporting on often-salacious celebrity lawsuits.
The comments by Lord Chief Justice Igor Judge came a day after a House of Lords member used that immunity to disclose details of an injunction secured by Sir Fred Goodwin, former head of the Royal Bank of Scotland, to block media from reporting on an alleged affair with a female colleague.
The bank was rescued by a massive government bailout during the credit crisis and is now 83 percent owned by British taxpayers.
"It is, of course, wonderful for you if a member of Parliament stands up in Parliament and says something which in effect means an order of the court on anonymity is breached," Judge told the media Friday as he presented a new report on privacy legislation.
"But you do need to think whether it's a good idea for our lawmakers to be flouting a court order just because they disagree with a court order or they disagree with the law of privacy which Parliament has created."
A debate about privacy is raging in Britain, particularly because the court orders have been seen as a shield for the wealthy. British courts have granted gag orders to scores of celebrities and sports stars to prevent media from publishing the details of their extramarital affairs.
Lord David Neuberger, the High Court's second-ranking judge, was appointed to lead the review following controversy over the use of injunctions, some of which, so-called super injunctions, even forbid reporting that a gag order was issued.
In recent weeks, a Twitter user made anonymous posts claiming to name many well-known men who allegedly were granted the gag orders, including a married soccer star who allegedly had a fling with a topless model and a married British actor who reportedly had sex with a prostitute.
Lord Ben Stoneham, the House of Lords member, argued Thursday the public had the right to know anything about Goodwin that might have a bearing on his leadership of the bank.
Following Stoneham's revelation, Judge Michael Tugendhat amended the order to permit the identification of Goodwin, but no details of the allegations or the name of the woman.
Neuberger's report said only two super injunctions had been issued since January 2010. One was set aside on appeal and the other was in force for seven days.
"Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice," Neuberger said. "However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice."
The report recommended that applications for injunctions be made in open hearings like any other court session. Exceptions should be made only when "strictly necessary ... to secure the proper administration of justice."
The report drew a distinction between super injunctions and anonymized injunctions, which bar publication of the name of the person who sought the order and perhaps other individuals.
Members of Parliament are protected from legal action based on anything they say in Parliament, but Neuberger's report said the law is unclear about whether that protection extends to media reports of proceedings. Parliament might want to clarify the law, the report said.
Judge said the courts were enforcing laws that flowed from the Human Rights Act of 1998 and the European Convention of Human Rights.
"Contrary to some commentary, unelected judges in this country did not create privacy rights," Judge said. "They were created by Parliament. Now that they have been created, judges in this country cannot ignore or dispense with them: they must apply the law."
Technological advances such as Twitter have made it more difficult to suppress allegations, but that doesn't make control impossible, he said.
"Why are we assuming that the world of communication, developing as rapidly as it is, can never be brought under control by other technological developments?" Judge said. "I am not giving up on the possibility that people who in effect peddle lies about others through modern technology may one day be brought under control."
U.S. websites are largely exempt from the British gag orders, in part because they fall outside the court's jurisdiction.
Freedom of speech in the United States is protected under the First Amendment and often trumps privacy arguments. European law protects both privacy and freedom of expression, but it is often left to interpretation by judges.