Super injunctions and privacy: Why all the fuss?
Lawyers around the country are familiar with the day to day tool by which a client can obtain an injunction – a court order requiring his opponent either to do something specific, or (very frequently) not to do certain acts. In some circumstances an interim injunction can be obtained on an ex parte basis, that is without the other side having a chance to be heard, though in that situation there is always a hearing within a few weeks at which the Defendant can put their side of the argument.
If an injunction is granted, it is usually perfectly legitimate for the existence of the proceedings and the injunction granted to be reported by the news media. In years gone by Private Eye was full of reports about injunctions obtained (often against itself) by serial litigators like the discredited late Robert Maxwell. Very often an interim injunction acts as a pre-emptive strike sufficient to effectively conclude the dispute.
The difference with super-injunctions, and why they are causing such a furore, is that as well as an ordinary interim injunction to restrict an act, usually the publication of a story linking businesses with wrong doing or people together, part of the Order is a restriction on the news media from reporting the very existence of the proceedings or of the fact that an injunction has been granted. If granted, a super injunction ensures a news blackout, until or unless the claimant declares it (as Andrew Marr did) or a brave and/or anonymous soul puts themselves in contempt of court and breaches the order, by tweeting or blogging the news. Once something is in the hands of the electronic media, it is very hard to put the lid on it, whether the story being broadcast is true or false (as Jemima Khan knows).
The super-injunctions began in the commercial sphere, the first recorded example granted to oil company Trafigura to suppress reporting and debate about involvement in the dumping of toxic waste in Abidjan. More recently the remedy has become increasingly common in privacy cases where celebrities get wind of the impending publication of stories about them, and seek by way of a super-injunction to elevate their right to privacy over the journalist’s rights to freedom of expression by suppressing any mention of their private lives, even where the story is true.
It can be hard to see that a celebrity fling is ordinarily a matter of such importance that the public interest (and not merely tabloid prurience and curiosity) overrides an individual’s entitlement to privacy, but where for example that individual trades on an image promoting family values it may well be appropriate for the truth to be known and for discussion to be raised.
It is for this reason that there is increasing disquiet in the media and in Parliament about the growing trend for rich celebrities or companies to exploit the super-injunction, for fear that legitimate truths are being suppressed. This chimes also with the politicians distaste for judge–made law, and fuels their demands for Parliament to legislate to provide a clearer set of privacy laws in the hope of balancing the competing interests.
Partner and Head of Dispute Resolution
Commercial Dispute Resolution
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks
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Luke Patel
