There has been extensive coverage in the press in recent times regarding so-called super-injunctions or "gagging" orders. The press say the apparently increased use of such orders in privacy cases poses a fundamental challenge to freedom of speech and that Parliament should step in to legislate.

Super-injunctions are frequently confused with anonymity orders and other types of "interim non-disclosure order". The press has suggested that the use of all such orders has created a form of secret justice, unauthorised by Parliament, and that undue restrictions are being placed on freedom of expression solely in order to protect the reputation of celebrities.

The latest legal development is a detailed report on the use of super-injunctions by a Committee set up by the Master of the Rolls: the "Report of the Committee on Super-injunctions" published on 20 May 2011.

A detailed briefing on super-injunctions and other interim non-disclosure orders is attached to this bulletin.

It can be seen that:

The right to privacy

  • There is a right to privacy under English law, afforded by Article 8 of the European Convention on Human Rights (ECHR), and an action for misuse of private information which was developed by the House of Lords decision in Campbell v Mirror Group Newspapers [2004] UKHL 22.
  • There is a two stage test which the Court will consider in any privacy claim:
  • Is there a reasonable expectation of privacy in relation to the information in question?
  • Are there any countervailing considerations which justify intrusion?

Injunctions: super-injunctions and interim non-disclosure orders

  • The Court may grant an interim injunction to restrain publication of private information pending trial if the claimant is likely to establish at trial that publication should not be allowed (s.12(3) Human Rights Act 1998 (HRA)). The case of Cream Holdings Limited v Banerjee [2005] 1 AC 253 established that this was a high threshold test and that the applicant must prove that they will "probably succeed at trial".
  • A super-injunction is a particular type of interim injunction which restrains both:
  • publication of confidential or private information.
  • publicising or informing others of the existence of the order and the proceedings themselves (the "super" element of the injunction).
  • Super-injunctions should be distinguished from anonymity orders which prevent publication of the names of one or more of the parties to the proceedings but not the fact that an injunction itself has been granted.
  • Both such orders are derogations from open justice. The rationale is to prevent frustration of the underlying purpose of the injunction.
  • These types of orders (together with reporting restrictions, private hearings, confidential schedules and the sealing of the court file) are now to be referred to collectively as "interim non-disclosure orders".
  • True super-injunctions are now very rare and are effectively anti-tipping off measures.
  • The press have highlighted concerns that interim non-disclosure orders give rise to undue secrecy, are capable of binding third parties without due process and that they can effectively become permanent.
  • As to secrecy, the Court of Appeal has set out guidelines for the use of interim non-disclosure orders to ensure that as much information as possible is publicly available.
  • The Committee Report considered the impact of interim non-disclosure orders on the rights of third parties who are served with notice of the order but are not a party to proceedings. It concluded that:
  • advance notice of an application for interim relief should be given to anyone that the applicant intends to bring within the terms of the order, if granted (including non-parties).
  • non-parties will be provided with the relevant material and information only on the basis of irrevocable undertakings to the Court that the information will not be used for any collateral purpose.
  • Interim non-disclosure orders should always contain a return date (to avoid becoming permanent by default), where the matter must come back to Court for review and consideration will be given as to whether the order is still relevant and necessary.

Subversion and enforcement

  • Separately, the press have waged a concerted campaign in recent months to highlight the fact that interim non-disclosure orders – particularly anonymity orders – are being readily subverted by disclosures on the internet. Some have argued that, as a result, the restrictions placed on the mainstream press are unfair. Certain MPs have also disclosed information subject to non-disclosure orders in Parliament, presenting a challenge to the Court's authority. It is particularly difficult to enforce an interim non-disclosure order in such circumstances as:
  • If the disclosure is made on the internet, it may well have been made by an anonymous party whose identity can not be found (and/or who may be in a foreign jurisdiction).
  • A civil action for contempt of court may be available where an individual has been served with notice of the injunction, otherwise criminal proceedings might be brought if the publication has impeded or interfered with the administration of justice. However, in practice, criminal proceedings for contempt are rarely brought.
  • MPs making disclosures in Parliament are protected by parliamentary privilege.
  • The subversion of anonymity orders on the internet does not necessarily fatally undermine their purpose and/or mean that the restrictions placed on the press are unfair. In the case of Goodwin v News Group Newspapers Limited No.3 [2011] EWHC 1437, Tugendhat J emphasised that publishing private information in a national newspaper is highly intrusive and gives credibility and permanency (as it would then be available on press databases) to a story. This status is not attained by publication on the internet.

Next steps

  • The Committee Report has recommended that the criteria for the grant of interim non-disclosure orders are now formalised and Practice Guidance and a Model Order containing standard provisions be issued for use in privacy cases.
  • The government has established a joint Parliamentary committee to investigate super-injunctions further and report back as to whether any action should be taken. Ultimately, this could lead to legislative action being taken.