On 20 May 2011, the Report by the Committee on Super- Injunctions (the Committee)—“Super-Injunctions, Anonymised Injunctions and Open Justice”—was published. The Report examines procedural issues surrounding super-injunctions and anonymised injunctions and considers how the courts should approach them.

BACKGROUND

The Committee on Super-Injunctions was established in response to concerns in the United Kingdom about the perceived growth of super-injunctions and anonymised proceedings, in particular, concerns about the balance between privacy rights and freedom of speech. The Committee considered and reported on: 1) the practice and procedure governing interim injunctions that restrict freedom of speech, 2) the use of specialist judges to determine applications for super-injunctions, 3) super-injunctions and the media reporting of Parliamentary proceedings, and 4) the collection of data about super-injunctions and anonymised injunctions and the communication of information concerning the same to Parliament and the public.

PRIVACY, CONFIDENTIALITY AND THE PRINCIPLE OF OPEN JUSTICE

The Report notes that open justice (open court proceedings) is a fundamental constitutional principle. Whilst statutes require certain types of proceedings to be kept secret, derogations from open justice can occur only where strictly necessary for the administration of justice.

A general right to respect for privacy was only recognised in 2000, following the coming into force of the1998 Human Rights Act. However, the growth of super-injunctions, which derogate from open justice, has led to concerns that a privacy law is being introduced “through the back door” by the judiciary.  

In defence of the courts, the Committee notes that where a legal right is created or extended, injunctive relief can properly be used to protect that right; the increase in the number of privacy injunctions since 2000 is thus largely a product of the developing substantive law. However, the Committee noted that “There was justifiable concern that super-injunctions were being applied for and granted far too readily”.  

SUPER-INJUNTCIONS AND ANONYMISED INJUNCTIONS

Unfortunately, confusion has arisen because many anonymity injunctions have been wrongly labelled super-injunctions. The Report defines a super-injunction as “…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)”; and an anonymised injunction as ”…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.” Anonymised injunctions derogate less from open justice, as the proceedings and judgments remain public. Super-injunctions, however, threaten a form of permanent secret justice unless kept in check.  

The Report concludes that: i) as anonymised injunctions and super-injunctions derogate from open justice, they should only be granted for short periods; ii) a super-injunction should never become permanent; and iii) it can only be justified in exceptional circumstances where it is strictly necessary to secure the proper administration of justice.  

REPORTING ON PARLIAMENTARY PROCEEDINGS WHERE ORDERS ARE DISCLOSED

Addressing concerns about the media reporting information disclosed by Members of Parliament in breach of these injunctions, the Report notes that parliamentary freedom of speech is “of the highest constitutional importance”. As such, “no super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings”, because it would be unconstitutional. But media reporting of Parliamentary proceedings is different. Whilst statute protects the publication of parliamentary materials and Hansard (and, so long as it is in good faith, summaries of Hansard), general media reporting of Parliamentary proceedings is not protected. Rather, the common law determines whether there is any protection from contempt proceedings. To date, unfettered reporting of Parliamentary proceedings in apparent breach of a court order has not been established as a clear right. The Report concludes that it is a matter of substantive policy whether Parliament wishes to clarify the law in this area.

COMMENT

The Report offers timely clarification of an issue that has generated considerable public comment and has at times been inaccurate. It also provides much-needed guidance for potential claimants and defendants, usually media organisations.