Anti-protest injunctions, like many injunctions, unfailingly receive a bad press. They are restrictive orders that require extraordinary circumstances to justify the fetters they place on freedom of speech. However, for businesses across all sectors facing protests which not only interrupt their business, but intimidate and endanger the safety of their staff, they can be a necessary and valuable tool.
Recent high-profile examples
In recent times, high profile injunctions have been brought against animal activists opposing the badger cull, protestors taking photographs of security staff at an energy company, campaigners opposing the felling of trees and, in the case of Harvey Nichols, anti-fur protestors. In the most recent example to hit the headlines, Birmingham City Council has been granted an injunction preventing "persons unknown" from protesting outside a primary school against LGBT teaching and from making "offensive or abusive" comments online.
In the Birmingham case, the protests, voicing concerns that children at the school were being taught about LGBT relationships, occurred outside Anderton Park Primary School for several months. After the intensity of the protests increased, Birmingham City Council made an application for an injunction to prevent the protestors from gathering outside the school on the basis of the risk of harm to the school's staff. The application was made "without notice", meaning that the persons whom the application was against were not made aware of the proceedings in advance.
An application on this basis is only allowed in exceptional circumstances and the applicant must provide the court with evidence to show why not notice has been given. On 31 May 2019, the court granted the application and made an order against "persons unknown", meaning that it applies to any person anywhere. Broadly, the order prevents anyone from protesting in the locality of the school, and prevents people from using social media to make "offensive or abusive comments" about the school or its staff in relation to the teaching of equalities.
At the time of writing, the order is due to be reconsidered on 10 June 2019.
This is not the first time this year that injunctive proceedings have been considered by the courts in relation to protestors. In 2017 the chemical and energy firm, INEOS, was granted an injunction against protestors campaigning in relation to INEOS' fracking activities. The High Court injunction more or less prevented a broad array of activities that could be considered protesting. However in April this year, the Court of Appeal narrowed the scope of the injunction, broadly on the basis that it was too uncertain. It will be interesting to see whether a similar view is taken in the Anderton Park case, which has been criticised by legal commentators for being made without notice and for the way in which legislation relating to public highways seems to have been used to restrain social media.
Our top ten issues to consider
Grounds - Anti-protest injunctions typically fall into four categories: trespass, harassment, obstruction of a highway or ongoing criminal offences. If you anticipate problems with campaigners, lay down clear markers as to what is and isn't acceptable. In the context of trespass, you'll need to be clear on what is and isn't private land. In the case of harassment, formally make it clear that the conduct is causing distress.
With or without notice? Injunctions are normally applied for 'on notice', which means giving three days' notice to the other party. An urgent injunction can be obtained 'without notice', but you will need to be able to explain to both the court and potentially the press the "compelling reasons" why you did so. It might be justified, for example, in circumstances where alerting the respondents would frustrate the purpose of the application.
Persons unknown - don't know the identity of the protestors? No problem. An injunction can be granted against 'persons unknown'.
Be aware of what you are starting - the interim injunction you apply for at first instance will not be the end of the matter. The matter will need to progress to trial (or if not contested, judgment in default) and a final injunction. The process and its cost has to be worth the PR 'fallout' – and be aware that success can often include a need to enforce the order that you have obtained in further proceedings.
Civil v criminal? An injunction is a civil court order which attracts criminal penalties for contempt of court if breached. If a breach of the peace or other criminal act is being committed, liaise with the police.
Review your security - physical and cyber. Today's protests don't only happen in the physical world. Identify any vulnerabilities and train staff thoroughly on your policies and procedures.
Online protests - remember that in addition to traditional 'protest', there are other forms of campaigning. A hostile twitter hashtag can cause as much reputational damage as picket lines.
When social media becomes harassment or criminal abuse – when campaigning crosses the line into harassment or other forms of criminal abuse, forensic and legal measures can be utilised to identify the posters and take appropriate steps.
Legal proceedings can be perceived as heavy handed - where a lawful peaceful protest is taking place on issues of genuine public interest, open dialogue and public relations assistance will be the better response.
Above all, plan - if your business (or an associated party) is taking controversial steps likely to receive opposition, incorporate protest response into your crisis management plan, identifying the core team who will lead the response and the steps you might take, not just to control illegitimate protests, but to protect your reputation against any backlash.
This article should not replace legal advice tailored to your specific circumstances. For further information please contact Jennifer Agate (firstname.lastname@example.org or 020 7263 0011) or your usual contact at the firm.