Are Privacy Super-Injunctions now Obsolete? – Ian Felstead

In 2011, superinjunctions were the talk of the town. Fast forward to 2014, not a single application for a privacy injunction was made in London between January and June. In the age of social media, has seeking a privacy injunction become completely pointless?

Max Mosley was recently back in the High Court trying to prevent Google from allowing users of its search engine to find images of him with prostitutes at a sex party. Mr Mosley claims that Google is a publisher misusing his private information and, amongst other things, is seeking an injunction to prevent Google from doing so.

Mr Mosley has of course been trying to prevent publication of such images for a number of years. But, in recent times, this is a rare case of an individual seeking an injunction to prevent publication of their private information.

Back in early 2011, British politicians, the press and the public were appalled by the relatively new phenomenon known as superinjunctions, a particular type of privacy injunction which prohibits a person from publishing not only the relevant private information but also the relevant proceedings. They became extremely popular in 2010 and 2011, particularly with professional footballers seeking to cover-up extra-marital affairs, but soon after became almost extinct.

Following on from the 2011 furore regarding superinjunctions, the Ministry of Justice has – every six months – published statistics regarding the number of applications at the Royal Courts of Justice in London for injunctions preventing the publication of private and/or confidential information. The most recent statistics published, for the period from January to June 2014, show that not one application for a privacy injunction was made. So what has happened?

First, the courts have changed their approach. In May 2011, realising that the courts needed to be more circumspect in agreeing to make such orders, the Master of the Rolls issued guidance in relation to applications for privacy injunctions [pdf]. The guidance, which has been followed by the courts ever since, means that:

• The fact of the injunction application must generally be notified in advance to the media (who may well choose to appear at the hearing), the hearing will generally be held in public and the judgment will generally be made available publicly. In the age of social media, therefore, even a successful applicant may not be able to keep the relevant information truly private.
• Even if the applicant obtains an injunction, and otherwise manages to keep the relevant information private, the court will require that the applicant progresses his or her case. This means that significant legal costs will inevitably be incurred and, more importantly, that at some point a final order would be made – meaning that, in contrast to the interim injunction, it would only be binding on the respondent and not all other parties served with the order.

Secondly, following the closure of the News of the World, the phone-hacking scandals and the Leveson Inquiry, the press has arguably become more careful in the way it reports (or chooses not to report) individuals’ private information. This form of self-censorship or responsible journalism does, at least to an extent, reduce the demand for privacy injunctions.

Finally, there is a new cautiousness from potential applicants for privacy injunctions and their lawyers. The cases of Ryan Giggs and John Terry, whose extra-marital affairs were exposed (and arguably given more exposure) following them obtaining superinjunctions, have become salutary lessons.

People no longer believe that their identity or the relevant information will be kept secret if they make an application for a privacy injunction, whether the disclosure comes as a result of the court proceedings, on social media or even (as in Ryan Giggs’ case) in parliament. The view of would-be applicants for privacy injunctions seems to be summed up well by Jeremy Clarkson:

“One, most importantly, injunctions don’t work. You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter and the internet. It’s pointless.

Secondly, you used to be able to take out an injunction and then just sit on it. But you are now ultimately forced by the courts to go to trial – which is unbelievably expensive.”

However, as Mr Mosley shows, there will always be individuals who are so determined to protect what they consider to be their private information that they will apply for an injunction notwithstanding all of the above.

This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks