“Super-injunctions” are in the news. The “Committee to examine super-injunctions” established by the Master of the Rolls in April 2010 is due to report shortly. There have been nearly 200 newspaper stories referring to “super-injunctions” in the past week alone. The latest concerns Andrew Marr “revealing” that he obtained a super-injunction. Commentators are united in their criticism of the practice of granting super-injunctions. There are many strange features of the “super-injunction” story but perhaps the strangest of all is the fact that they no longer exist. The “super-injunction” – the injunction which prevents the reporting of its own existence – is dead.
No more super-injunctions are being granted by the Courts in privacy cases. Indeed, many past injunctions were and are wrongly described as being “super”. Mr Marr’s is a good example. This injunction plainly did not prevent reporting of its own existence – it was mentioned by “Private Eye” and the “Independent” as long ago as June 2008. As the latter article makes clear what was being complained about was an “anonymity” provision, not a “super” restriction on disclosing the injunction itself.
The sceptical journalist may not be convinced by our report of the death of the “super-injunction”. “How can you know there are no super-injunctions?” she will say “after all, they are secret and no one can know what is really going on“. Well, the “death report” is based on a number of items of publicly available evidence.
First, there has been a change in the attitude of the Courts. It has been made clear on a number of occasions that “super-injunctions” are only appropriate in very limited circumstances. On 17 September 2010 in DFT v TFD ([2010] EWHC 2335 (QB)) Sharp J refused to extend a “super-injunction” which had been granted to prevent “tipping off” a blackmailer, making instead what is now known as a “DFT Order”, limiting publication to what was contained in the order and in her public judgment. On 16 November 2011 in the case of Ntuli v Donald ([2010] EWCA Civ 1276) the Court of Appeal discharged a super-injunction granted in that case by Eady J saying that they were “simply unpersuaded” that such a restriction was necessary. In the face of such judicial dicta it seems highly unlikely that a first instance judge would now grant a “super-injunction” in the ordinary course.
Second, although “super-injunctions” are, by definition, not known to the public they are, almost always, known to the media. This is because such injunctions are usually sought to protect the claimant’s privacy rights against media publication and, if granted, they are usually served on the media under the “Spycatcher” principle. It seems likely that if such an injunction had been granted recently the media would have raised the issue with the judge or on appeal. There is no indication that this has happened since the Ntuli case (where Guardian News and Media Ltd intervened to argue against the continuation of a “super-injunction”). The position is confirmed by the testimony of the Guardian’s Director of Editorial Legal Services – a member of the Neuberger Committee and a notable campaigner for open justice. In an article in Media Guardian on 25 April 2011 she said, dealing with what she describes as “some procedural improvements” in recent times
“the “superinjunctions” – (orders preventing reporting even of the existence of an order) are, other than in exceptional cases where it may be necessary to prevent someone been “tipped off” in advance, a thing of the past“.
Third, although “super-injunctions” cannot (by definition) be reported they still feature in the Court lists. All injunctions are now given “return dates” – in other words they are made only for a short time and then have to be renewed. The renewal hearing appears in the Court list and inquiries can be made as to what took place. As reported in a recent post Inforrm has researched all the “anonymised” hearings in the Queen’s Bench Division in the first quarter of 2011 – there were eleven hearings, seven of which have produced published public judgments. We were unable to confirm what had happened in all the remaining cases but we have subsequently been told by the Judicial Communications Office that ex tempore public judgments were given in all of them. In other words, analysis based on the Court lists suggests that there have been no “super-injunctions” in 2011. None of the privacy injunctions granted since 31 March 2011 have been in “super-injunction” form.
We should also mention so-called “hyper-injunctions”. This was a term introduced by John Hemming MP in a debate in Westminster Hall on 17 March 2011to describe an injunction which prohibits a person from contacting his MP. The only example he cited was from a 2006 commercial case which apparently concerned an allegation that paint used on the water tanks of passenger ships could be poisoning the water (the case he referred to was a court order recording an agreement which was not an injunction at all, see the Head of Legal blog post about Mr Hemming’s speech and in particular the comments on the post). Nothing else is known about the 2006 case or about the reasons why such an order was made. As a number of privacy lawyers commented at the time, there no suggestion that such a provision has been included in any privacy injunction. In short, not only are “hyper-injunctions” not a “new form” of privacy injunction – they appear to be limited to a single example made some 5 years ago in a non-privacy case.
Finally, we should repeat the point which has been made on a number of occasions over the past year – notably by the Culture Media and Sport Committee – that it would be of great assistance when debating these issues to have proper statistics. The usually unreliable “Daily Star” tells us that 240 injunctions have been granted over the past three years. The “Times”, in contrast, puts the figure at 20 to 30. Without careful analysis of the Court lists is it is difficult to know who is right. It is noteworthy that in a Memorandum submitted to the Culture Media and Sport Committee in June 2009 the Master of the Rolls identified only 6 injunction applications in the period January 2008 to June 2009 – that is, a rate of one every 3 months.
It is to be hoped that the Neuberger Committee will put in place arrangements for the collection and publication of reliable figures for the number of privacy injunctions made and granted, along with a short summary of the nature of the case. Such information would ensure that the “super injunction” monster is finally laid to rest.
This is a wonderfully clear and persuasive analysis. It will however be beside the point for many of those who have been commenting on this issue. They are not railing against superinjunctions strictly understood, but rather against anonymity provisions and their impact on the freedom to publish and even just the fact that injunctions simpliciter are ever awarded. Much of the argument deployed is utterly decrepit: eg. this is a rich man’s law (I – it is so because the rich are those whom the media most focus on, and II – would those making the point be content if access to justice made more easy for the impecunious in this context?).
That all said, there is room for debate around the fringes as to how far privacy law should run. Personally, I agree with Gill Phillips that there is something distasteful about the use of the law to hide secrets that involve the betrayal of trusts, although I would also agree that its probably inappropriate for the law to take sides. Judge Tugendhat’s insistence that cuckolded others should be supportive of injunctions before their rights are taken into account seems a fair requirement to me. For similar reasons, I personally baulk a little at Ward LJ’s position in ETK. That seems to me probably to underplay the Article 10 interest.
Ultimately, there is room for debate on such matters. You can’t debate however with those who create myths, and for whom the myth becomes more real than the actuality.
Thank you for the detail. I think this illustrates exactly why more information is needed. You state:
If academics and researchers could more easily access the basic details of orders, including those made ex tempore, their structure could be discussed and analysed in more detail – to inform the wider debate.
Thanks for putting the trackback to my Louse & Flea piece. I drank widely and deeply from various pieces on the inforrm blog to write it. As may be gathered, I write as a journalist, but one who is deeply sceptical of the Fleet Street ethos, particularly when it is in full cry.
One thing I wrote I had second thoughts about: that there had been a “rash” of privacy injunctions over the last few months. This, I realise, was purely a reflection that there had been many more such injunctions reported in the media over the last few months, rather than there had suddenly been a surge in the numbers compared with what would normally be anyway. I am in no position to know whether there has been a sudden increase or not. Could you or any of your readers inform me, or point me in the direction, of figures which show the number of privacy-related injunctions (“Super” or “Clark Kent”) that have been granted over, say, the last year? I would much appreciate it, as I feel this is an issue which will run and run and will write about in future.