This article needs attention from an expert in law. The specific problem is: incorrect reference to some cases as super-injunctions. See the talk page for details.(April 2016) |
In English tort law, a super-injunction is a type of injunction that prevents publication of information that is in issue and also prevents the reporting of the fact that the injunction exists at all. [1] The term was coined by a Guardian journalist covering the 2006 Ivory Coast toxic waste dump controversy that had resulted in Trafigura obtaining a controversial injunction. [2] Due to their very nature media organisations are not able to report who has obtained a super-injunction without being in contempt of court.
The term "super-injunction" has sometimes also been used imprecisely in the media to refer to any anonymised privacy injunction preventing publication of private information.
Critics of super-injunctions have argued that they stifle free speech; that they are ineffective as they can be breached using the Internet and social media; and that the taking out of an injunction can have the unintended consequence of publicising the information more widely, a phenomenon known as the Streisand effect.
The Neuberger Committee notes that the terminology surrounding privacy injunctions has been used imprecisely and the term "super-injunction" has been used to refer to: [3]
The committee adopt the definition that a super-injunction is
an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
An anonymised injunction is a type of injunction which restrains a person from publishing information concerning an applicant that is said to be confidential or private. An anonymised injunction differs from a super-injunction as an anonymised injunction does not restrain the publicising or informing of others of the existence of the order and the proceedings. The term "hyper-injunction" has been used to describe a type of super-injunction that also forbids a person from discussing the issue in question with journalists, lawyers or Members of Parliament. Such injunctions have been criticised as anti-democratic and the former Liberal Democrat MP John Hemming used Parliamentary privilege to reveal the existence of a hyper-injunction surrounding an allegation that the type of paint used in water tanks on some passenger ships could break down and release toxic chemicals. [4]
Super-injunctions are also applied in Northern Ireland. [5] In January 2020, it was reported that seven super-injunctions were in effect in Northern Ireland. [5]
Due to their very nature it is not possible to say exactly how many super-injunctions exist or have been issued. The Neuberger Committee that examined super-injunctions stated: "at present, there are records of only a limited number of cases; specific records are not at present kept in respect of such matters". The Neuberger Committee report does not specify how many have been granted in the past but does state that only two super-injunctions had been granted since the John Terry case: Ntuli v Donald [2010] EWCA Civ 1276) and DFT v TFD [2010] EWHC 2335 (QB). [6] The Daily Telegraph have reported that 12 super-injunctions exist. [7] Below are known super-injunctions that have become public:
Case | Method of revelation |
---|---|
RJW v Guardian News and Media Ltd (Trafigura) | Paul Farrelly, MP for Newcastle-under-Lyme, had tabled a parliamentary question revealing the existence of the injunction. [8] |
Ntuli v Donald | A super-injunction was granted but later discontinued. [9] |
DFT v TFD | A super-injunction was granted but later discontinued. [10] |
Terry v persons unknown | Application for a super-injunction was rejected after being granted on a temporary basis. [11] |
Andrew Marr and anonymous | Issued in 2008, its existence was revealed by Andrew Marr in a 2011 interview. [12] |
NMC v persons unknown | The Guardian reported that a case with this name exists and that it is a former super-injunction. [13] Laura Scaife's Handbook of Social Media and the Law also refers to this case as a super-injunction but the facts of the case are not publicly known. [14] The order date of the super-injunction is 9 February 2009. [13] |
WER v REW (Christoper Hutcheson v News Group Newspapers) | Super-injunction granted but the courts later refused to continue it. [14] |
CTB v News Group Newspapers Ltd | Super-injunction granted but later discontinued following Parliamentary disclosure. [15] |
Several cases have been inaccurately described as super-injunctions in the media. These include:
Case | Notes |
---|---|
MNB v News Group Newspapers | Incorrectly referred to as a super-injunction by John Hemming MP in the House of Commons. |
PJS v News Group Newspapers | Incorrectly referred to as a super-injunction on social media. |
There are several ways in which the public can learn of a super-injunction:
Instance | Example |
---|---|
When a judge refuses to continue a super-injunction | In DFT v TFD a super-injunction was granted but later discontinued |
When parliamentary privilege is used to reveal an injunction | RJW v Guardian News and Media Ltd |
When a super-injunction is breached in contempt of court | |
When a super-injunction is reported somewhere outside of the jurisdiction of English courts | CTB v News Group Newspapers Ltd was reported on Twitter, under US jurisdiction |
When a person who has taken out a super-injunction volunteers this information | Andrew Marr and anonymous - issued in 2008, its existence was revealed by Andrew Marr in a 2011 interview |
Super-injunctions have been criticised on various grounds including that they stifle free speech; are ineffective; and risk drawing further attention to an issue. The Daily Mirror newspaper has criticised super-injunctions as existing only for an elite highlighting a poll that 79% of people believe super-injunctions exist for the rich and powerful alone. [16] Super-injunctions have also been criticised on feminist grounds with Maeve Mckeown arguing that "superinjunction allows rich men to legally protect their reputations at the expense of less-rich women". [17]
An injunction is an equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers." A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court.
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. It is common in countries whose constitutions are based on the Westminster system.
Sir David Eady is a retired High Court judge in England and Wales. As a judge, he is known for having presided over many high-profile libel and privacy cases.
Carter-Ruck is a British law firm founded by Peter Carter-Ruck. The firm specialises in libel, privacy, international law and commercial disputes. The leading legal directories rank Carter-Ruck in the top tier of media, defamation and privacy lawyers in the UK.
The Streisand effect is an unintended consequence of attempts to hide, remove, or censor information, where the effort instead increases public awareness of the information. The effect is named for American singer and actress Barbra Streisand, whose attorney's attempt in 2003 to suppress the publication of a photograph showing her clifftop residence in Malibu, taken to document coastal erosion in California, inadvertently drew far greater attention to the previously obscure photograph. The effect exemplifies psychological reactance, a kind of 'reverse psychology' effect, in which the attempt to hide information instead makes it more interesting to seek out and propagate.
Mosley v United Kingdom [2011] 53 E.H.R.R. 30 was a 2011 decision in the European Court of Human Rights regarding the right to privacy under Article 8 of the European Convention on Human Rights. An application to the court was made by Max Mosley, the former president of the FIA, after his successful breach of confidence legal case against the News of the World. In that case, the court unanimously rejected the proposition that Article 8 required member states of the Council of Europe to legislate to prevent newspapers printing stories regarding individual private lives without first warning the individuals concerned. It instead held that it fell within each state's margin of appreciation to determine whether to legislate on that matter.
Sir Michael George Tugendhat, styled The Hon. Mr Justice Tugendhat, and referred to as Tugendhat J in legal writing, is a retired High Court judge in England and Wales. He was the High Court's senior media judge, taking over that role from Mr Justice Eady on 1 October 2010.
The British privacy injunctions controversy began in early 2011, when London-based tabloid newspapers published stories about anonymous celebrities that were intended to flout what are commonly known in English law as super-injunctions, where the claimant could not be named, and carefully omitting details that could not legally be published. In April and May 2011, users of non-UK hosted websites, including the social media website Twitter, began posting material connecting various British celebrities with injunctions relating to a variety of potentially scandalous activities. Details of the alleged activities by those who had taken out the gagging orders were also published in the foreign press, as well as in Scotland, where the injunctions had no legal force.
CTB v News Group Newspapers is an English legal case between Manchester United player Ryan Giggs, given the pseudonym CTB, and defendants News Group Newspapers Limited and model Imogen Thomas.
NEJ v BDZ (Helen Wood) ([2011] EWHC 1972 (QB) is a 2011 High Court case involving issues of privacy in English law.
POI v The Person Known as “Lina”' was a 2011 privacy case in which an injunction was granted restraining the publication of photographs. The case also involved blackmail and because of this the claimant was granted anonymity.
RJW v Guardian News and Media Limited, also known as Trafigura v Guardian News and Media Limited and the Trafigura case, was a 2009 legal action in which Trafigura attempted to use a super-injunction to prevent the press reporting details of toxic waste dumping in the Ivory Coast. A landmark case in UK privacy law, the case brought these types of injunction under scrutiny and caused government concern about the injunctions and how they are used. The injunction was released on The Guardian after Paul Farrelly MP brought up the topic during Parliamentary Questions and the publication of the report on WikiLeaks.
WER v REW was an anonymised legal case in which Chris Hutcheson, represented by Hugh Tomlinson, of Schillings, took out an injunction to prevent Popdog Ltd from publishing details regarding his private life, and was heard before Justice Sir Charles Grey in January 2009. Hutcheson – Gordon Ramsay's former business partner and father-in-law – gained an injunction but it was later partially lifted, and ultimately overturned in the Court of Appeal, with Hutcheson being publicly named by the judge.
Parliamentary privilege in the United Kingdom is a legal immunity enjoyed by members of the House of Commons and House of Lords designed to ensure that parliamentarians are able to carry out their duties free from interference. The privileges are freedom of speech, freedom from arrest on civil matters, freedom of access to the sovereign, and that 'the most favourable construction should be placed on all the Houses' proceedings'. Fair and accurate reporting of the proceedings of parliament is also protected by parliamentary privilege.
Injunctions in English law are a legal remedy of three types. Prohibitory injunctions prevent an individual or group from beginning or continuing actions which threaten or breach the legal rights of another. Mandatory injunctions are rarer and compel a person to carry out a certain act such as make restitution to an injured party. Freezing injunctions relate to funds such as bank accounts and are commonly Mareva Injunctions which are sought mainly in fraud, breach of trust and confiscatory proceedings. Injunctions are most common in cases involving significant matters of nuisance, privacy and libel ; they are relatively common remedies in major employment/agency/distribution, trust and property disputes, especially interim, interlocutory injunctions pending settlement or final hearing, whichever is the earlier where there is a clear and present danger that the matter in dispute between the parties will be wholly frustrated if the injunction is not imposed. A final hearing only may impose a final injunction which may be equivalent to undertakings given in a legally binding settlement document.
PJS v News Group Newspapers Ltd [2016] UKSC 26 is a UK constitutional law case in which an anonymised privacy injunction was obtained by a claimant, identified in court documents as "PJS", to prohibit publication of the details of a sexual encounter between him and two other people. Media outside England and Wales identified PJS as David Furnish.
In English law an anonymised injunction is, according to the Neuberger Committee, "an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated". An anonymised injunction is distinct from a "superinjunction" which also prevents publication that the injunction has been obtained. When reported, anonymised injunctions have case names which hide the identity of one or more parties, for example PJS v News Group Newspapers.
MNB v News Group Newspapers also known as Goodwin v News Group Newspapers is an English privacy law case in which then banker Fred Goodwin successfully applied for a temporary injunction to prevent The Sun from publishing details about his private life. The injunction was breached by John Hemming MP in the House of Commons where the case was inaccurately referred to as a super-injunction.