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Super-Injunction denied

By Steven | February 3, 2010

A fascinating insight into super-injunctions

English football captain John Terry’s failed attempt to obtain an injunction gagging revelation of his affair with his team-mate’s ex contains a lot of fascinating information about so-called super-injunctions. A super-injunction is a gag that not only prevents particular information from being published, it also stops anyone even mentioning the injunction. The Terry case (listed as LNS v Persons Unknown) shows us the gall of the lawyers seeking the gag, how they operate, what controls there are on them, and (something about) how many have been granted.

The problem with super-injunctions

Super-injunctions can make terrible inroads into the principle of open justice. They stop the media even reporting the existence of cases that may raise very important issues. One party may be trying to squelch the revelation of publicly important information. And even where (as here, I think) the information at the heart of the case isn’t especially significant, super-injunctions prevent the media (and the public, and other lawyers, and academics, and commentators) from evaluating the court’s use of its powers.

The problem with media reporting about super-injunctions

Super-injunctions have another downside. The media can’t really be trusted to report on them fairly. For instance, the judge didn’t “change his mind” about the injunction, as the Guardian would have it. The Guardian is so apoplectic about super-injunctions that it loses the plot in its reporting. As Justice Tugendhat explains in his judgment, he did initially grant a very temporary super-injunction, to allow time for the case to be argued and him to reach his decision, which he did, precisely a week later. The order lapsed, and he decided not to grant the injunction sought.

The extraordinary order sought

So what order was sought? Even the judge boggled at it. Terry wanted to be able to serve anyone (read: especially media organisations) with the order, which would then stop them mentioning the affair, providing any details about it, publishing photos about it, or mentioning the court case itself, on pain of contempt of court. The recipients would be given the barest of information about the case, and wouldn’t be entitled to see most of the court documents, (though their right to apply to the court for a variation of the order would be mentioned). They would not be told the basis for the injunction.

Terry wanted these orders to be made after a private hearing without giving notice to anyone in the media who might argue against them.

Then he wanted the court file to be sealed from search and the case to be kicked to touch, with no guarantee that it would ever come back before the court. The claim itself is against “persons unknown”, and Terry would be very unlikely to actually serve the proceedings (as opposed to the gag order) on anyone. A gag order is supposed to be an ancillary measure, but for Terry, it was the whole ballgame. No trial was ever likely to be held.

He wanted the order made without giving any evidence himself (he was too busy, he said), and with only hearsay evidence from Vanessa Perroncel, gathered by Terry’s business partners. The judge wonders whether Perroncel was paid to say she too wanted the affair kept private.

Super-injunctions: how many?

How often are such wholesale orders made? The judge (who’s fairly new) didn’t know of any, but Richard Spearman QC told him there had been “some”. The free speech lobby group Index on Censorship quotes UK media lawyer Mark Stephens saying that at any given time there are 200 to 300 super-injunctions in force. I’m a bit skeptical about this. The Guardian says it has received 23 in the last three years. I’d expect the Guardian to be getting most of them.

Justifications for super-injunctions

What Index on Censorship doesn’t mention is how many of those super-injunctions were fleeting – to put the clamps on information pending the court’s consideration of the application. For instance, Justice Tugendhat’s decision in this very case, which has been widely applauded in the British press, can technically be chalked up as another super-injunction because of his week-long interim order.

The judge also notes that short-term super-injunctions may be justified in some other situations:

The reason why, on some occasions, applicants wish for there to be an order restricting reports of the fact that injunction has been granted is in order to prevent the alleged wrongdoer from being tipped off about the proceedings before an injunction could be applied for, or made against him, or before he can be served. In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, the alleged wrongdoer might consider that he or she could disclose the information, and hope to avoid the risk of being in contempt of court. Alternatively, in some cases, the alleged wrongdoer may destroy any evidence which may be needed in order to identify him as the source of the leak. Tipping off of the alleged wrongdoer can thus defeat the purpose of the order.

Such super-injunctions, he notes, will usually expire quickly. They don’t raise the sorts of concerns that long-term super-injunctions do, I think. Richard Spearman QC could not cite an example of a super-injunction that lasted beyond the service of the order on the respondent, and without a return date.

I also wonder how many super-injunctions actually prevent us learning about or discussing truly signficant things. I’m sure many do, and the Trafigura case is a good example. But super-injunctions protecting details about celebrities’ sex lives are of a different order than those protecting issues being discussed about matters of legitimate public concern.

Of course, it’s in the nature of super-injunctions that we know almost nothing about them, and that’s a big part of the problem.

The law and the court rules that guard against unjustifiable super-injunctions

Still, the Tugendhat judgment is very robust in rejecting the claim. The judgment shows the protections that are in place to try to prevent unjustified injunctions: there must be good evidence of a threat to publish sensitive private material; the possible publication should be truly distressing; the evidence should be first-hand; privacy injunctions aren’t there to protect claimants who are primarily concerned about their reputations; media defendants should be alerted in almost all cases so they can present arguments; in no-notice hearings the applicant’s lawyers are required to draw the court’s attention to information that may count against them; they have to prove that any defences (such as public interest) that might be available are not likely to succeed; the court will almost always require a later hearing with the respondents present; court files are not usually sealed; documents can generally be made available with anonymity orders and the sensitive information kept back in a confidential schedule; if the information is already circulating, that will tell against an injunction; open justice and free speech weigh heavily in the balance.

The judge ruled against Terry on a wide variety of grounds, including the inadequacy of the evidence of a real threat to publish sensitive details, the possibility of a public interest defence, the failure to notify media respondents, and his assessment that Terry was really trying to protect his sponsorship deals. The judge also pointed out that even if Terry had succeeded, the order would be in much more limited terms than Terry sought, and would not have included a super-injunction element.

So… super-injunctions: bad. But we need more information before we thump the table too hard about them, I think.

Topics: Injunctions, Privacy tort, Suppression orders | 6 Comments »

6 Responses to “Super-Injunction denied”

  1. Justin Says:
    February 4th, 2010 at 5:13 pm

    Guess its no surprise most of us havent heard of super-injunctions, I would prefer the term super-suppression… which although maybe not an acurate description it does make it seem much more menacing!

    I actually see a real purpose in them, and in many ways would offer a fairer deal than other supressions if used correctly. By correctly I mean used sparingly, rarely and for very limited duration.

    I wonder if such a super-injunction exists or has been used in NZ before?

    For me the real danger with them is not so much around questions of open justice, but around the rights of free speech and freedom of the press…

  2. Steven Says:
    February 4th, 2010 at 6:44 pm

    I’m aware of two super-injunctions in NZ, one by consent and one quickly reversed. I suspect there are more, but the courts don’t keep stats: see http://www.medialawjournal.co.nz/?p=288

  3. Justin Says:
    February 5th, 2010 at 8:00 am

    Thanks for the link, I’d missed that event. Now that does seem to fly in the face of open justice where you cant even discuss the reasoning behind a decision after the fact.

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