The “super-injunction” is now very familiar to readers of discussions of media law in the press and the blogosphere.   It is, however, not a legal term of art and there has been a lot of confusion about what a “super-injunction” is and how many of them exist.   In this post we try to provide some clarification and explanation of the position.

An injunction is a court order restraining someone from doing something (in the jargon “a prohibitory inunction”) or, sometimes, ordering them to do something (in the jargon “a mandatory injunction”).   An injunction can be granted after a trial (“a final injunction”) or before a trial to protect the rights of a person until a trial can take place (“an interim injunction”).    Under the so-called “Spycatcher principle”, an interim injunction binds anyone who has notice of it:  anyone who is aware of its terms.

In English law, final injunctions preventing publication of libels are routinely granted to successful claimants after a trial but interim injunctions are almost unheard of (because of the operation of the rule against prior restraint – the so-called “rule in Bonnard v Perryman).   This means that super-injunctions have nothing to do with libel reform.  As far as we are aware, no one has ever suggested that a “super-injunction” has ever been granted in a libel case. This is sometimes an area of confusion.

In contrast, in breach of confidence or privacy cases interim injunctions restraining publication are the primary remedy.  If the private material is published extensively, its  private nature is lost.  This has long been recognised and accepted by the English Courts and by the Court of Human Rights.    An interim injunction in a privacy case will usually be “anonymised” – in other words, the name of the claimant will be replaced by three letters (for example, “ABC” – this is because the High Court’s computer needs at least three for indexing purposes) or a description (for example, in a case last year, “The Author of a Blog”).   The injunction order will then contain a provision restraining the defendant from publishing the name of the claimant.   In such a case the media can report that an injunction has been granted against them but cannot say who by.  Usually they will also be prevented from describing the subject-matter of the injunction.  For example, injunctions might typically contain a provision to this effect:

“The Defendants must not disclose the identity of the Claimant in this action or the nature of the action or the relief sought and granted, save for the purpose of this action”.

In other words, if an “ordinary privacy injunction” is obtained against a newspaper – let us call it the “Daily Beast” by a well known premiership footballer – let’s call him “Roy of the Rovers” – to prevent it from publishing a story about his extra marital affair – with a Ms Pole-Dancer, the possible reports of the proceedings are limited.  The newspaper will be permitted to say “The Daily Beast was yesterday prevented from publishing a story by an injunction” but not “The Daily Beast was yesterday prevented from publishing a story about the sex life of Roy of the Rovers” or “Roy of the Rovers yesterday obtained an injunction against the The Daily Beast”. Under the “Spy Catcher principle” the same restrictions will apply to anyone else who has notice of the injunction.

The Daily Beast could, of course, ask for (and a judge might grant) greater leaway:  “A well known premiership footballer obtained an injunction yesterday to prevent the publication of the story of his affair with Ms Pole-Dancer” and so on.   The judge is, however, likely to grant an interim injunction which prevents that essential nature of the story being disclosed.   To refuse such an injunction would be to pre-judge the position against Roy – in other words, to decide at the interim stage to allow his privacy to be invaded.

Sometimes – this is the controversial part – an interim an injunction also contain an additional provision restraining the defendant from disclosing “the existence of these proceedings”.   This is the so-called “super-injunction”.  Such injunctions are not new.  They have, for example, traditionally been granted in wardship cases – where the press are prevented from reporting no only the identity of the child but also the fact that there are any proceedings.  They are also sometimes granted in cases concerning publicity of criminal investigations and other emergencies.  However, the recent complaints have been about the use of such injunctions in cases involving breach of confidence or privacy.

The most infamous example is the “Trafigura” super injunction.  This can be found here in a version annotated by the Guardian.   The crucial provision is that in clause 7 which provides that until trial or further order the Guardian must not disclose

(i) The information that the Applicants have obtained an injunction and/or (ii) the existence of these proceedings; and/or (iii) the Applicants’ interest in these proceedings”

It is difficult to see how this was justified – in the context of an action about a leaked stolen privileged document.  Such a document was confidential but the fact that Trafigura were restraining its publication was neither confidential nor private.   The injunction was, of course, discharged.  Alan Rusbridger’s commentary on the case makes interesting reading.

There was, of course, also a controversy about whether or not the injunction prevented questions being asked in Parliament (it did not) and about the circumstances in which the stolen document came into the possession of an MP.  This part of the case was highly unusual, perhaps unique.   We are not aware of any injunction – super or otherwise – which has been framed in terms which impact on Parliamentary business.  It seems inconceivable that, if asked, any judge would grant such an injunction.  The Trafigura injunction, of course, made no mention of Parliament.

A “super-injunction” was also granted temporarily in the John Terry case but was discharged by the judge on his own initiative the following week (see Terry v Persons Unknown [2010] EWHC 119 (QB)).  This case, incidentally, illustrates another issue which arises in privacy cases: the “persons unknown” injunction.   This arises when the claimant becomes aware that someone is offering (usually for money) private information about him: for example, cases (which are surprisingly common) of intimate photographs stolen from cameras or laptops.  The claimant cannot identify the “vendor/thief” but obtains an injunction naming him as the defendant (often using a description like “A Person Unknown, offering photographs of the Claimant for sale“).  This injunction is then served on the media – with the intention that they will be bound under the “Spycatcher” principle.   There is a rule – which was said to have been broken in the Terry case – that the claimant must notify any newspaper which he knows to be interested in the information of the injunction application, to give it an opportunity to object.

Nobody knows how many “super-injunctions” are in existence – estimates vary from 10s to 100s.   This is, of course, part of the problem – the courts do not collect any statistics on this (or any other) kind of application.   It is clear that they should so that the debate can be properly informed.  Lord Neuberger, the Master of the Rolls has set up a committee to examine the issues around the use of injunctions which bind the press and ‘super-injunctions’. The announcement is here.

In what circumstances will a “super-injunction” be justified?   The “privacy” example which is usually given is the blackmail case: if, for example, a burglar has stolen Roy of the Rovers’ private photograph album from his Cheshire mansion and has been in touch saying that unless he is paid £50,000 he will sell it to the “News of the World”, Roy might not trust the police and might decide to injunct the “person unknown offering to sell the album”.   In those circumstances, he does not want it to publicise knowledge that he is being blackmailed  and so seeks a “super-injunction”.  However, even in that situation suitable “anonymity” provisions will normally protect him.   It is difficult to think of “privacy” cases in which anonymity will not provide sufficient protection.

We await the committee’s views with interest.