Debunking the Myth of the Contra Mundum Injunction Order

In his “Postcard From The Staterooms: Urbi et Orbi and *Contra Mundum* edition” post, Charon QC’s UK Law Blog refers to an important privacy law decision from the England and Wales High Court (Queen’s Bench Division): OPQ v BJM [2011] EWHC 1059 (QB). In what Mr. Justice Eady described as  “a straightforward and blatant blackmail case”, the learned Justice continued an injunction restraining the First Defendant and her partner from publishing confidential material about the Claimant’s private life and extended its application contra mundum (“against the world”).

I have no reason to doubt that Justice Eady’s injunctive order is binding on the English defendants and likely enforceable against third parties, particularly, any English media outlets within the territorial grasp of court’s jurisdiction.  It is not, however, enforceable in Canada and likely anywhere else in the world.A helpful case analysis is provided over at Inforrm’s Blog in a post entitled: Case Law: OPQ v BJM – a privacy injunction “contra mundum”.

As Charon QC (a.k.a. Mike Semple Piggot) observes,

For my part, I don’t have any interest in knowing the name of the footballer or the actor involved in the latest superinjunctions. Lawyers have suggested that Eady J and others ‘may be over reaching themselves’.  Certainly ‘contra mundum’ – against all the world – is more of a legal fiction than a practical reality.  Whether judges like it or not, there is no practical way of enforcing breach if publication is in a foreign country – even if the writ of the English trial judge ran throughout the world.  It doesn’t.  It is, they say, fairly straightforward to discover identities of *The Superinjunctioneers* by using the net. [emphasis added]

For a spirited discussion, listen to CharonQC’s latest Without Prejudice podcast, featuring David Allen Green, Carl Gardner and former Lib-Dem MP Dr Evan Harris, who discuss the issue of privacy law and the balancing of interests.

Andrew Scott at MediaPaL@LSE in his post, The advantage of buying ink by the barrel: thoughts on one recent privacy injunction suggests the contra mundum order is enforceable against third parties:

In normal circumstances, orders made by the court – whether at the interim or final stages – bind only those persons to whom they are addressed. The ‘Spycatcher principle’ ensures, however, that any person on whom notice of an interim order is served will be – in effect – bound by its terms. This situation arises indirectly. As explained by Mr Justice Gray in Jockey Club v Buffham:

the claimant in a confidence action enjoys … a windfall consisting in protection pending trial against invasion of his right of confidentiality by third parties. But the reason for the existence of that windfall is the need for the Court to be able to enforce, through the machinery of the law of contempt, the object for which the interlocutory injunction was granted and not to protect the confidential information as such([2002] EWHC 1866 (QB), at [26]).

Hence, the third party is not bound by the order itself. Rather, the rules of contempt of court operate to ensure that the third party cannot publish information covered by the injunction. To allow third-party publication to occur would frustrate the aim of the court in seeking to protect the integrity of the instant proceedings until a full trial can be convened and concluded.

In another post, “The effect of privacy injunctions on third parties” at the RPC Privacy Blog, Keith Mathieson writes:

At all events, Eady J decided to grant a contra mundum  injunction.  His judgment sets out the basis on which he concluded he had jurisdiction to do so despite such injunctions having been granted previously only on very rare occasions.  Previous examples are the cases of the child killers Robert Thompson, Jon Venables and Mary Bell, where it was perceived that orders to protect their new identities were required to protect their rights to life and freedom from persecution.  Such an order was also made in favour of Maxine Carr, the former girlfriend of the Soham killer Ian Huntley.

Although there was no apparent risk to the lives of OPQ or his family (or if there was, this is not stated in the judgment), Eady J was apparently persuaded that there was a risk of serious adverse consequences, including to their mental health, and on that basis he concluded that there was “unfortunately no other means open to the court of fulfilling its obligation under the Human Rights Act to protect those rights than to grant a contra mundum injunction”.

This appears to be a significant extension of the jurisdiction to grant injunctions that bind third parties.  In the most recent edition of Tugendhat and Christie’s The Law of Privacy and the Media, published just a few weeks ago, the editors note:

Contra mundum orders are at the extremity of the court’s power, and would not commonly be granted in aid of a private right, except where life or limb was at risk. [13.35]

Charon QC is definitely on the mark when he states that an injunction contra mundum “is more of a legal fiction than a practical reality.”

Consider the following hypothetical.

1. An anonymous individual sends an email to a Canadian news media outlet or a Canadian blogger disclosing the identity of the plaintiff or defendants in breach of Mr. Justice Eady’s contra mundum injunction order.

2. Presuming the Canadian news media outlet or Canadian blogger had prior notice of Justice Eady’s order, it nevertheless posts a story disclosing the identity of the anonymized plaintiff and defendants in the action.

3. Plaintiff’s English counsel becomes aware of the leaked story which is republished ad infinitum by other news media outlets and bloggers, including links tweeted and retweeted on Twitter, and posted on Facebook and other social media platforms.

4. Plaintiff’s English counsel then bring an emergency ex parte motion for a contempt order made against the Canadian news media outlet or Canadian blogger in breach of Eady J’s contra mundum injunction order.

5. Justice Eady makes an order declaring the Canadian news media outlet or Canadian blogger in contempt.

6. Plaintiff’s English counsel delivers a copy of Justice Eady’s order to the offending parties demanding that the published story be removed and all copies of the article be destroyed, including any versions available online.

7. The Canadian news media outlet or Canadian blogger ignores the written demands from Plaintiff’s English counsel.

What next?

Nothing.

While the Canada-United Kingdom Civil and Commercial Judgments Convention Act C-30 (the “Convention”) with annexed Proclamation provides for the reciprocal recognition and enforcement of judgments in civil and commercial matters between the United Kingdom and Canada (excluding Quebec), any foreign contempt order would not be recognized or enforced by a Canadian court. This follows the Supreme Court of Canada’s decision in Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, 2006 SCC 52 (S.C.C.) which held that, while foreign non-monetary (equitable) orders are now capable of recognition and enforcement in Canada, contempt orders, by virtue of their quasi-criminal nature, are not. As Deschamps J for the majority remarks:

34                              It is well established that Canadian courts will not enforce a penal order, either directly or indirectly (Castel and Walker, at para. 8.3).  This point is pertinent only to the recognition and enforcement of the contempt order. The Superior Court judge reasoned that the contempt order was restitutionary in nature and engaged a dispute between private parties (para. 17). This narrow view of contempt of court conflicts with Matia J.’s finding that, “[b]ased upon these violations, Elta Golf is in contempt of this Court” (A.R., at p. 102), and with this Court’s finding in Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065:

The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of “public law”, in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue. [p. 1075]

35                              In Canadian law, a contempt order is first and foremost a declaration that a party has acted in defiance of a court order. Consequently, a motion for contempt of court cannot be reduced to a way to put pressure on a defaulting debtor or a means for an aggrieved party to seek indemnification. The gravity of a contempt order is underscored by the criminal law protections afforded to the person against whom such an order is sought.  Not only is that person not compellable (Vidéotron, at p. 1078) but he or she is not competent to act as a witness for the prosecution: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4; P.-A.P. v. A.F., [1996] R.D.J. 419 (C.A.). The significance of a contempt order is also evident from the sanction faced by the offender.  In Canada, an individual in contempt of court can be committed to jail (see Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 60.11) or may face the imposition of any other sanction available for a criminal offence, such as a fine or community service: Westfair Foods Ltd. v. Naherny (1990), 63 Man. R. (2d) 238 (C.A.). Thus, both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law.

36                              The “public law” element of a declaration of contempt and the opprobrium attached to it eclipse the impact of a simple restitutionary award.  As a matter of principle, the quasi-criminal nature of the contempt order precludes the enforcement of such orders in Canada.

 Any application to enforce a contra mundum injunction order by exercising the English court’s contempt power against a third party would be refused under Article IV of the Convention which provides in part:

1. Registration of a judgment shall be refused or set aside if

…

(e) enforcement of the judgment would be contrary to public policy in the territory of the registering court;

The same result is likely to hold in the United States (see,  Ken MacDonald,“A New Approach to Enforcement of Foreign Non-Monetary Judgments” (2006), 31 Adv. Q. 44, at p. 56, citing the Restatement of the Law (Third): The Foreign Relations Law of the United States (1987), Part IV, ch. 8, § 481, noting U.S. courts, while allowing the recognition of judgments granting injunctions, will not generally enforce such orders, cited by Deschamps J. at para. 39).

Beyond the issue of the penal nature of contempt orders, the underlying privacy law rationale for issuing the injunction would not be recognized, at least, not in Ontario. In Jones v. Tsige, 2011 ONSC 1475, Whitaker J. concluded there is no tort of invasion of privacy in Ontario, citing the Ontario Court of Appeal’s decision in Euteneier v. Lee, 2005 CanLII 33024 (ON C.A.) which held “properly conceded in oral argument before this court that there is no “free standing” right to dignity or privacy under the Charter or at common law”.

Of course, there is an undercurrent of moral suasion involved here. While a contra mundum injunction order has no extra-territorial effect , the practical reality is that any responsible journalist or blogger will not flout a court order, unless it wishes to become a virtual pariah or persona non grata in reporting on events in the U.K. There is, after all, a Royal Wedding upcoming.