Is social media challenging the authority of the judiciary? Rethinking the effectiveness of anonymised and super injunctions in the age of the internet

Thaddeus Manu, and Felipe Romero Moreno, 'IS SOCIAL MEDIA CHALLENGING THE AUTHORITY OF THE JUDICIARY? RETHINKING THE EFFECTIVENESS OF ANONYMISED AND SUPER INJUNCTIONS IN THE AGE OF THE INTERNET', Journal of Legal Studies, Vol. 18 Issue 32, 2016. DOI: 10.1515/jles-2016-0017. This is an open access article distributed under the Creative Commons Attribution-NonCommercialNoDerivs license as currently displayed on http://creativecommons.org/licenses/by-nc-nd/3.0/.While freedom of expression has a long and well-established constitutional foundation as a self-governing concept, the right to privacy is a relatively recent norm in the constitutional orientation of the United Kingdom. Until the Human Rights Act 1998, the right to privacy had little standing constitutionally. Following on from this standard-setting, notably, both rights have taken on added importance in our modern technological society. Nevertheless, the formulation of privacy into a legal doctrine of human rights seems to have presented a fundamental tension in relation to freedom of expression. As a matter of legal logic, the courts, through a consideration of the law, examine the substantive legal issues in terms of a balancing process, whereby the interest in privacy is balanced against the interest in freedom of expression. It is a matter of broad principle for the courts to rely on injunctions as ancillary instruments of equity in doing justice in this field. Significantly, while the elementary norm of an injunction is that it commands an act that the court regards as an essential constituent to justice, unfortunately, many contend that judges have gone beyond this point, and this is shifting opinions. In fact, serious concerns have been frequently expressed about the extent to which the rich are easily able to invoke the discretion of the court to grant injunctions in a fashion that remains an antithesis to the principle of open justice and also undermines the exercise of freedom of speech. While this suspicion is not entirely new to matters of procedural law, the recent case, PJS v News Group Newspapers turned on this controversy. Therefore, the aim of this paper is to examine the complexity of celebrity privacy injunctions in the age of the internet and question its relevance, as we outline the extent to which social media is challenging the authority of the state (judiciary) in this direction.Peer reviewedFinal Published versio

The “Fusion” of law and equity?: A Canadian perspective on the substantive, jurisdictional, or non-fusion of legal and equitable matters

Equity, in its broad understanding, has long been a fundamental part of law. Its history may be traced through principles illustrated in the Old Testament and, in various formulations, through Ancient Greek and Roman legal constructs, as well as in Natural Law and Canon Law. While the historic presence of equity within various systems of law is unquestioned, the jurisdiction of equity within contemporary legal systems has been a matter of significant debate and confusion. Facilitating a better understanding of the contemporary role of equity requires knowledge of its meaning and the implications of the historic merger of legal and equitable jurisdictions. This paper establishes a framework for appreciating the contemporary challenges faced by equity by examining the Supreme Court of Canada’s analysis of the merger of legal and equitable jurisdictions in two major cases involving allegations of breaches of fiduciary duty: Canson Enterprises Ltd v Boughton & Co and Hodgkinson v Simms. The inconsistent application of equitable principles in these cases demonstrates the court’s confusion over the effects of the historic merger of law and equity and offers a valuable perspective for the administration of justice in contemporary law.Peer reviewe

The reform of the testamentary jurisdiction of the ecclesiastical courts, 1830-1857

This thesis was submitted for the degree of Doctor of Philosophy and awarded by Brunel University.This thesis traces the efforts of successive Governments of both persuasions to reform the ancient jurisdiction of the spiritual courts over the validity of wills of personal property. Those non-partisan efforts spanned three decades and resulted in the 1857 Court of Probate Act. A Royal Commission, reporting in 1832, recommended in effect that the jurisdiction be centralised in London by transferring it from the Province of York and from the diocesan and inferior courts to the Prerogative Court of Canterbury at Doctors' Commons, where the specialist civilian lawyers practised their separate and monopolistic body of law. Because the Real Property Commission preferred a secular solution, the 1832 Report was endorsed by a Commons Select Committee in 1833 and modified by a Lords Select Committee in 1836 to allow a limited non contentious local jurisdiction. Several early attempts to bring in reforming measures based upon the centralising 1832 Report failed because of local opposition, a lack of resolve on the part of Ministers and the pressure of other business. Two Government Bills were introduced during Peel's Second Ministry. The 1843 Bill failed because it pursued a centralising policy. The 1844 Bill failed because it departed from that policy and offered to keep the diocesan courts. The Whig Opposition introduced its own centralising Bill in 1845 but it too failed. After the inactivity of Russell's administration, efforts at reform were resumed in the 1850s by rapidly changing Governments, but were hampered by local opposition, pressure of other business, and the Crimean War. By then the 1854 Report of the Chancery Commission had recommended that the entire jurisdiction should be removed to a secular court, and the debate raged about which practitioners should benefit. Finally, after pressures in the Commons to secure appropriate compensation and district probate offices with extended powers, the 1857 Act ushered in the present system

Charitable Endowment and Social Change: Cy-Près Orders and Schemes, 1837–1901

The article discusses the law governing cy-près applications of charitable endowment during the Victorian period and the institutional framework within which cy-près orders and schemes were made. Powers to make such orders and schemes were vested in the court of chancery and the charity commissioners, a body of administrative officials created in 1853. Some case-studies are undertaken, to gain a better understanding of the approaches taken by the court and the commissioners towards the making of orders and schemes and of their opinions regarding certain social, religious and political issues

Mechanics' Liens in the Mowat Era

In the past decade, legal history has moved beyond studies of cases, lawyers and judges to the consideration of law in its social, political and economic context. Drawing on accounts of the activities of organized labour, debates in the Ontario Legislature, articles in legal journals and decisions in court cases, this article examines the political and ideological importance of mechanics' lien legislation in Ontario from 1873 to 1896. Mechanics' lien legislation provided a remedy not available at common law to unpaid construction workers and building supply dealers, by permitting them to register their claim as a lien on the real property to which they had contributed their labour or materials. The legislation, which was passed in response to a clearly articulated labour demand, was criticized as class legislation, largely because its short title obscured its importance for tradesmen as well as workers. Because the legislation interfered with rights acquired by contract or through the ownership of property, the courts viewed it with disfavour and interpreted it narrowly, making little effort to understand and implement the intent of the Legislature. The legislation survived, however, because it did not challenge central ideological constructs of the day. Depuis une dizaine d’années, l’histoire judiciaire est passée de l’étude des procès, des avocats et des juges à celle de la loi dans son contexte social, politique et économique. A partir des comptes rendus des activités des syndicats ouvriers, de débats au Parlement ontarien, d’articles de revues juridiques, et des décisions prises dans les causes portant sur le privilège foncier des constructeurs et des fournisseurs de matériaux de construction, cet article se propose d’examiner l’importance de la dimension politique et idéologique de la loi sur ce privilège, en Ontario de 1873 à 1896. Cette loi sur le privilège foncier des constructeurs et des fournisseurs de matériaux de construction apportait une solution non prévue dans le droit coutumier, à la non-rétribution des ouvriers et des fournisseurs concernés, en leur permettant d’enregistrer leur réclamation en tant que contribution foncière en termes de travail effectué ou de fourniture de matériaux. Elle répondait à une demande syndicale clairement formulée et fut critiquée comme étant une loi d’exception par rapport au droit coutumier, principalement parce que son titre abrégé masquait son importance pour les fournisseurs comme pour les ouvriers. Par ailleurs, étant donné qu’elle interférait avec les droits acquis par contrats ou par droit de propriété, les tribunaux la voyaient d’un mauvais œil et l’interprétaient de façon étroite, faisant peu pour la comprendre et la mettre en vigueur selon l’intention originelle du Parlement. Cependant, elle ne remettait pas en cause les conceptions idéologiques essentielles de l’époque : c’est pourquoi elle survécut

In Chancery: The Genesis of Micro Caseflow Management

This article explores an early example of subordinate judicial practice in England and Wales in which we may see some issues that later appear in the relationship between informal justice initiatives (especially alternative dispute resolution) and the civil justice system. Broadly speaking, the paper looks first at the symptoms of systemic failure in the pre-1873 system which led to the creation of the Official Referee’s office. It then considers the relevant recommendations of the Judicature Commissioners and the reasoning behind such recommendation, looking at both the macro- and the micro-levels, before exploring the referees’ diverse jurisdiction which provided a creative foundation for the evolution of interlocutory innovation. The article argues that structural realignment of the court system by the Judicature Commissioners was not sufficient in itself to eradicate all its encumbrances, but it indirectly empowered the referees to eventually bring about revolutionary procedural changes

Playing Poohsticks with the British Constitution? The Blair Government\u27s Proposal to Abolish the Lord Chancellor

This paper critically assesses a recent and significant constitutional change to the British judicial system. The Constitutional Reform Act 2005 swept away more than a thousand years of constitutional tradition by significantly reforming the ancient office of Lord Chancellor, which straddled all three branches of government. A stated goal of this legislation was to create more favorable external perceptions of the British constitutional and justice system. But even though the enacted legislation does substantively promote this goal, both by enhancing the separation of powers and implementing new statutory safeguards for judicial independence, the process of constitutional reform did not comport with it. The reform process suffered from undue speed, excessive secrecy, and failure to ensure adequate consultation and debate on the reform proposals. It also created an atmosphere of distrust that not only forced the government\u27s retreat from its initial goal of entirely abolishing the office of Lord Chancellor, but also failed to achieve public confidence that the reforms were needed as a matter of reasoned principle. Like the game of Poohsticks, chance played too great a role in the constitutional reforms. This flawed process is inconsistent with the goal of improving external perceptions of justice, fairness, and judicial independence from political pressure. These recent constitutional reforms in the United Kingdom are worthy of American attention because external perceptions of the justice and fairness of the American constitutional system are growing in importance in an era in which the United States, like the United Kingdom, seeks to export its democratic values across the globe and struggles to ensure the appropriate level of judicial independence. Increasingly, it matters not only that justice be done, but also that it must be seen to be done