By Mark Warby
My mum told me the other day that she found all this publicity about privacy, super-injunctions, and Twitter most confusing. So do I, because the way it is reported seems to bear little resemblance to the world I thought I worked in and knew. So in case anybody else out there is befuddled I thought I would have a go at clarifying things by providing a glossary. Here are some of the key terms, and some definitions. In some cases I have offered alternatives, to help understanding.
A bit of cross-referencing is necessary here, so I have used asterisks to mark out terms you will find explained elsewhere in the glossary.
Privacy law glossary
Apply to the court: (1) what a person has to do if they want to obtain an injunction* (2) what any person has a right to do if served with or notified of an injunction* with which they disagree, and want to challenge (3) an expensive and uncertain alternative to Contempt of Court no 2* (4) see Waste of time and money.
Appeal: (1) what any person can seek to do if a court makes an order that affects them with which they disagree (2) see Apply to the Court no 3 (3) see Apply to the Court no 4.
Contempt of court: (1) speech or act which defies an order of the court, or defeats or undermines its purpose (2) see Making a Mockery.*
Court of Appeal: (1) one of the Houses of Parliament (2) Twitter (3) place staffed by Judges* to which you can go to obtain a fair hearing and challenge an injunction you disagree with (4) see Apply to the court nos 3 and 4.
Democracy: system of government using. See Votes.*
Fair hearing: (1) a fundamental human right (2) what people go to a court to get, when asserting their rights (3) reading Twitter, not consulting the people affected, deciding unilaterally what is right or wrong, and announcing it to the world.
Freedom of expression: (1) unequivocally good thing in all possible circumstances, when exercised by the print media or online (2) one fundamental right which may come into conflict with another, namely privacy*, so that a delicate balance has to be struck.
Gagging order: bad thing; order of a Judge that prohibits something being said that ought to be made known.
Hemming: fearless campaigner for the freedom to use parliamentary privilege to name with impunity well-known people who have obtained injunctions* from Judges* to prevent disclosure of information in the public interest* (2) not.
Injunction: (1) court order which prohibits things being said or done which the court considers ought not to happen (2) gagging order* made by a Judge.*
Issuing: (1) what celebrities do with injunctions, apparently (2) the act of starting legal proceedings, preliminary to asking a court to rule on a claim.
Judge: (1) person who makes it up as they go along, treats freedom of speech with contempt (2) fantasist with delusions of omnipotence (see also Unelected*) (3) individual appointed by the state to decide disputes about legal rights after a fair hearing.*
King Canute: see Judge no 2*. See also next section.
Making a mockery: (1) an exercise of freedom of speech* on Twitter or otherwise which involves deliberately disobeying a court order, undermining its effect, and so demonstrating Judges to be King Canute* (2) see Contempt of Court.*
Parliamentary privilege: fundamental right of any MP to do with impunity an act which would be a contempt of court*.
Privacy rights: (1) bad thing; synonym for adulterous
David Michaels is a scientist and former government regulator. During the Clinton Administration, he served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of the workers, neighboring communities, and the environment surrounding the nation’s nuclear weapons factories. He currently directs the Project on Scientific Knowledge and Public Policy at The George Washington University School of Public Health and Health Services. His most recent book, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health explains how many of the scientists who spun science for tobacco have become practitioners in the lucrative world of product defense. Whatever the story- global warming, toxic chemicals, sugar and obesity, secondhand smoke- these scientists generate studies designed to make dangerous exposures appear harmless. Earlier today we excerpted from the introduction to the book, the excerpt below is from Michaels recommendations to reform the courts’ role in our public health system.
Courts are a repository of large amounts of information that is potentially important in public health protection. Every chapter of this book contains material that was uncovered during the discovery process in a legal proceeding: documents that prove industry campaigns to manufacture uncertainty; others that prove corporate knowledge of significant health hazards years, if not decades, before they were acknowledged; and vital scientific studies that should have been in the literature but were hidden by their corporate sponsors. It is almost always in the public’s interest to place these documents in the public domain, but defendants, who want to avoid bad publicity and the encouragement of additional lawsuits, are often willing to offer the plaintiff a more generous settlement in return for secrecy. Seduced by the larger settlements, plaintiffs and their attorneys have little incentive to oppose the practice, and judges benefit by clearing their dockets of complex, time-consuming litigation. So the deal is done, and the documents are sealed from public view, sequestered forever. The loser is society. Secrecy diminishes our ability to both identify public health and safety hazards and prevent further harm.
Protective orders and secrecy agreements have hidden critical evidence of hazards associated with dozens of materials, products, and processes: automobiles, medicines, child car seats, BB guns, toys, cigarette lighters, 
school lunch tables, water slides, and many more. No price is paid by the parties involved to the contrary, it is a win-win deal for them—while the public and regulators are left in the dark. Secrecy agreements are a nefarious practice, and the courts have the means of limiting if not eradicating them. Some do so. The judges of the U.S. District Court for the District of South Carolina have issued rules ‘‘disfavoring court-ordered secrecy in cases affecting public safety,’’ but they appear to be in the minority on the federal bench. Judges in toxic tort cases may consider this issue in approving secrecy agreements, but such consideration does not carry the day often enough.
How could the courts put some teeth into rules to discourage the sealing of important documents? Dan Givelber, former dean of the Northeastern University School of Law, and Tony Robbins, former head of NIOSH, the U.S. National Vaccine Program, and two state health departments, have coauthored an intriguing proposal. They suggest that, if harm has been caused by a hazard that was the subject of previously sealed documents, a jury could use that earlier secrecy agreement as good cause for assessing punitive damages in this later case. With such a rule in place, secrecy agreements would not be a risk-free default position; for hiding the truth, the corporation could pay a steep price the next time around.
Ending this practice will come down to the judges and the rules established for them. It is their responsibility to protect the public. They should do so.
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