Regular injunctions are powerful instruments of law in their own right but a super injunction is a supercharged version of a regular order that provides an extra layer of protection for those at risk of defamation. In this article, we explore how they work but also some of the rare cases that have later been revealed.
What is a super injunction?
A regular injunction is a type of court order that prevents, stops or compels a specific action. In the context of media this would usually involve preventing an outlet from publishing a particular piece of private information.
A super injunction weaves in an additional layer of privacy by not only preventing the publication of private information but also preventing media outlets from publicising the existence of the injunction itself. This makes them particularly useful to high profile individuals wishing to preserve their reputation particularly when it concerns their private lives.
Conditions for granting a super injunction
So when is a judge likely to grant a super injunction? First off the order will be an interim injunction whilst the trial is in progress, should the applicant’s claim be successful then the super injunction can be made permanent. To be granted the judge will need to be satisfied that there is a justifiable reason with a strong argument. They are usually only granted when the publication of the order would defeat the very object of injunction in the first place.
One aspect that makes super injunctions so rare is the sheer cost of getting one granted making them a privilege of the wealthy and famous. Such is the urgency they require specialist lawyers to work at the drop of the hat, with fees for the initial injunction costing around £50,000 alone. These fees can extend to £200,000 once you factor in the follow-up court appearance making them out of reach for all but the higher echelons of society.
The original purpose of super injunctions was to prevent vigilantism against notorious criminals but they have morphed into a plaything of the rich looking to ringfence public opinion of themselves, something which many commentators feel effectively creates a two-tier legal system. The counter-argument to this is of course that John Smith from down the road is never likely to make the front page of the tabloids and as such a regular injunction will never likely be needed by them let alone a super injunction.
The media often attempt to fight orders by way of free speech and that publication is in the public interest. This inevitably pits two parts of the European Convention of Human Rights against each other: Article 8 states the right to privacy against Article 10 and the right to freedom of expression in the media.
How super injunctions are revealed
Due to the restrictive nature of super injunctions there are very limited ways in which they can be revealed to the public:
- The judge refuses to grant the order
- The judge refuses to extend the order – This is when the interim order is allowed to lapse as the judge no longer feels a super injunction is appropriate
- Parliamentary privilege – Due to the nature of our justice system MPs are not bound by injunctions so therefore do not face contempt charges as restricting speech would be a hindrance to democracy
- Contempt of court – when somebody illegally breaches the terms of the injunction to reveal the restrained information
- Revealed outside the jurisdiction of the court – Injunctions only apply in England and Wales and the jurisdiction does not apply to other nations
- When the applicant volunteers the information – This means the super injunction is revealed by the person who sought to hide the information in the first place
A brief history of exposed super injunctions
By the very nature of super injunctions, it is impossible to have a full account of exactly how regular they are or the details behind them. However, there have been a select number of cases that have come to the attention of the public. Here we have summarised some cases.
RJW v Guardian News and Media Ltd (a.k.a. Trafigura)
This particular super injunction was initially requested by a company identified only by the moniker ‘RJW’ and later identified as the multinational firm Trafigura after The Guardian was set to report on the dumping of toxic waste off the coast of Cote D’Ivoire leading to health problems for those in the vicinity. The firm representing Trafigura rushed to court to have the super injunction imposed which was later confirmed by a second judge.
This, of course, meant The Guardian were unable to publish the article but the information made its way onto Wikileaks which was beyond the jurisdiction of the courts. Having learnt of the issue, the MP for Newcastle-Under-Lyme, Paul Farrelly, used parliamentary privilege to reveal the existence of the subject. Even at this stage, the paper took legal advice that publishing the report may be contempt of court so was restricted to publishing a headline simply stating that there was a story about parliamentary proceedings that they were not permitted to publish.
By publishing the headline a series of events were triggered which led to wider public knowledge. Bloggers and users of twitters used their combined power to reveal the information in a mere 12 hours. The fallout from this was that there was a substantial outpouring from anger from MPs for trying to prevent parliamentary discussions being broadcast to the public. At this point Trafigura gave up the ghost and informed The Guardian they were no longer restricted by the injunction.
LNS v Persons Unknown (a.k.a John Terry)
In Terry v Persons Unknown [2010] EWHC 119 (QB) the former Chelsea and England footballer, John Terry attempted to get a super injunction granted to prevent the former tabloid News of the World from publishing a story regarding his private life. Ultimately the order was rejected as the judge felt that the real motive of seeking to restrain the details was financial rather than personal. The judge reasoned that Terry had a robust personality and would not likely suffer distress from the revelation of these details and that “the real basis for the concern of LNS is likely to be the impact of any adverse publicity upon the business of earning sponsorship and similar income.“
Andrew Marr
BBC political commentator and journalist Andrew Marr took out a super injunction in 2008 after an extra-marital affair to prevent the information being disclosed. Fellow journalist Ian Hislop had been fighting for the details of the injunction to be published but it was only when Marr volunteered the information himself did the story become public knowledge saying that he had become ‘uneasy’ with the situation and “I did not come into journalism to go around gagging journalists.“
DFT v TFD
DFT v TFD [2010] EWHC 2335 (QB) concerned a blackmail matter where the accused attempted to extort money by threatening to reveal a sexual relationship unless a bribe was paid. Initially an interim super injunction was granted which restrained publication of these private details as well as prohibiting any reports of the order to prevent the claimant having any intrusions into their private life. When the case returned to court the anonymity aspect of the injunction was maintained however the super injunction was not arguing that reporting was in the public interest and continuing to restrain this information may actually lead to the public making a more concerted effort to discovering the information. The judge also stated that anonymity provisions were sufficient to protect the identity of the claimant.
WER v REW (a.k.a. Hutcheson v Popdog Ltd & News Group Newspapers Ltd.)
In Christopher Hutcheson (formerly WER) v (1) Popdog Limited (formerly REW)(2) News Group Newspapers Limited [2011] EWCA Civ 1580 information was anonymised to protect the individual later revealed to be Christopher Hutcheson who sought to protect details of his private life. Initially, Hutcheson successfully had an interim super injunction granted restraining publication of the material. The two parties negotiated a compromise where they would voluntarily continue the effects of the injunction but the claim would cease to proceed. News Group Newspapers Ltd. (owners of The Sun) challenged the order, attempting to have it set aside. The judge ruled that as they had reached a compromise the interim injunction had not become final and had in fact ceased to be in effect which no longer bound third parties.
The claimant then sought a second super injunction against News Group Newspapers Ltd pending the trial. Having considered the balance of freedom of expression and a right to privacy, the judge rejected the injunction, leaving the newspaper free to publish the details once the appeal was heard which was ultimately rejected as he had engaged in a public spat with his business partner and chef Gordon Ramsay. This case has been used to demonstrate that if you take a quarrel public, it becomes difficult to differentiate between public and private life and any media coverage would not adversely affect them so therefore injunctions cannot be applied.
CTB v New Group Newspapers Ltd (a.k.a. Ryan Giggs)
Perhaps the most infamous super injunction of them all. In CTB v (1) News Group Newspapers Limited (2) Imogen Thomas [2011] EWHC 1232 (QB) a Manchester United footballer, referenced under the pseudonym ‘CTB’, was granted an interim order which was later extended to restrain details of his extra-marital affair with reality tv star Imogen Thomas. Rumours surfaced on Twitter naming Ryan Giggs as the mystery footballer and ultimately Liberal Democrat MP John Hemming used parliamentary privilege to confirm Giggs as CTB.
The case brought up many interesting points. Firstly that Giggs was a victim of the Streisand Effect whereby attempting to hide his identity only made Twitter users more intent on finding out the mystery footballer and therefore actually brought more exposure than had he done nothing. Action was initiated against Twitter to attempt to obtain anonymous user’s information however ultimately as it was reported around the world the cat was already out of the bag. Giggs may have attempted to bring action against Twitter and other media outlets in the United States however owing to their first amendment rights as well as Section 230 of the Communications Decency Act making platforms immune from what their users post, it would likely have been futile.
Additionally as Giggs had not applied for an interdict (the Scottish version of an injunction), the information was not restrained north of the border. The Scottish newspaper, the Sunday Herald, then proceeded to reveal his identity with a very thinly hidden image. As the print edition was solely sold in Scotland, the English court’s jurisdiction did not apply so no contempt charges could be brought against them.
Despite this, the member of parliament naming Giggs and the story effectively being public knowledge, the injunction remained in place even as The Sun launched further appeals. Finally, 10 months after the original application, Giggs gave permission for the court to reveal his identity. He attempted to claim damages from The Sun but this was rejected.
The case led to a report by a committee of judges recommended that super injunctions should “only be granted where they are strictly necessary.” David Cameron, the Prime Minister at the time called the situation ‘unsustainable’ and admitting the law needed reviewing. The case did highlight the inadequacies of the law when dealing with social media platforms but Twitter has subsequently said they will identify users where requested by courts likely through Norwich Pharmacal orders. Since this case, there has been a noted reduction in the number of orders granted (or at least those that have come to the public attention).
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