If you have read a newspaper or social media lately, you'll likely be familiar with the term super injunction. It’s often used in conjunction with someone from the entertainment industry trying to keep their private life out of the news.
But what exactly does the law say on super injunctions?
This guide answers this question and will help you understand what super injunctions are, who they are for, and when they apply.
In this article we’ll cover:
When super injunctions are granted by the courts;
Who super injunctions are for;
How to take out a super injunction;
How long will a super injunction protect you;
Some recent examples from the news.
What is a super injunction?
A super injunction is like a regular injunction on steroids. When it comes to the media, a normal injunction would stop a news outlet from publishing a certain piece of private information.
A super injunction goes one step further by doing the above and preventing the media from publishing anything about the existence of the injunction itself.
So, in short, a person who gets a super injunction granted by the courts can restrict information reaching the light of day and also prevent journalists from revealing that information is being kept private.
Many journalists argue that super injunctions are against public interest. There are often rumours swirling in the news about certain individuals being in possession of a super injunction. And through the years there have been famous cases where super injunctions have been broken, we’ll explore this in detail later.
When is a super injunction granted?
It is up to a judge to grant a super injunction. To grant a super injunction a judge will need to be convinced by a strong argument that the decision is justifiable.
It seems that we hear about these court orders frequently, but the fact is they are uncommon. The rarity of super injunctions and the secrecy surrounding them is what makes them so fascinating to the press and the public, and it’s why they get so much coverage. Additionally, the rumours that get reported around super injunctions can last for months if not years, which is why they seem so everyday.
Who can get a super injunction?
Despite appearances, super injunctions aren’t just for celebrities, or those in the public eye. Anyone can get a one. The impression is that super injunctions are only available to those with the money and resources to protect their public persona from scrutiny, a kind of public relations image massaging.
The reasons for the belief that super injunctions are only for the rich and famous is the cost of applying for one:
An initial injunction can cost around £50.000, this does not include legal fees to set it up;
Rounded up with paperwork and various court appearances a super injunction could cost as much as £200,000.
Before proceeding with the application for a super injunction consider whether a regular injunction will be more suitable for your needs.
There are two main types of injunctions:
Traditional injunction – the parties involved are named, but the details of the facts involved cannot be revealed. Can cost up to tens of thousands of pounds
Anonymised injunction – this form of injunction is common, it allows the publication of the injunction’s existence, but the names cannot be revealed.
How do you get a super injunction?
A trial will be called, and initially the judge will give the applicant an interim injunction while the trial progresses. If the judge is sufficiently persuaded by the evidence and argument made they will make the injunction permanent.
They are usually only granted when the publication of the order would overturn the purpose of the injunction itself.
How long does a super injunction last?
As mentioned, initially an interim injunction will be granted for the length of the court case. This will last until the final hearing, which is typically a few days to a few weeks after the first court appearance.
Once the interim injunction is made permanent the judge will decide on a duration that it will remain in place. This could be an indefinite period, or it could be set for a number or years.
When the specific duration has ended the super injunction expires, unless the court decides to extend or amend it based on the circumstances of the case.
In practical terms, super injunctions only last as long they are not revealed. In many, famous cases the existence of super injunctions was public knowledge for months before the details of the case emerged. This is often because someone involved in the injunction reveals information that has been sworn to secrecy.
How are super injunctions revealed?
There are limited circumstances in which the information contained in injunctions can come to light:
Contempt of court – when someone illegally breaks the terms of the injunction to reveal information;
When interim injunctions aren’t converted - the judge decides not to grant the super injunction;
Parliamentary privilege – MPs aren’t bound by the same rules around injunctions, they don’t face contempt of court when revealing information, if they were this could restrict democracy;
Outside the jurisdiction of the court – the injunction is legally binding in the jurisdiction it was granted, so restrained information can be revealed without consequence in another country;
When the injunction applicant reveals the information – some people who have taken out injunctions have later revealed the information, we’ll cover this below.
The media will often attempt to overturn super injunctions, arguing that they are against free speech and that publishing the information is in the public interest. In these cases, there is a push and pull between two parts of the European Convention of Human Rights. Article 8 which emphasises the right to privacy is considered against Article 10, the right to freedom of expression in the media.
Ex-Prime Minister and new Foreign Secretary David Cameron voiced his opinions on super injunctions in the aftermath of the Ryan Giggs case which dominated the headlines in 2011, saying “It is rather unsustainable, this situation, where newspapers can’t print something that clearly everybody else is talking about…”.
Infamous super injunctions
You may be familiar with these super injunction cases, which outline how this controversial legal protection work in practice.
RJW v Guardian News and Media Limited 2009
Also known as Trafigura v Guardian News and Media Limited, or the Trafigura. This case saw Trafigura, an energy company, attempting to use a super injunction to cover up details of toxic waste dumping in the Ivory Coast.
The super injunction was requested by Trafigura after the Guardian planned to report on the firm’s toxic waste dumping which led to health issues for people in the Ivory Coast. Trafigura had a super injunction rushed through the courts, and this was later reinforced by another judge.
The Guardian were unable to publish the story of this unethical behaviour, however it was publicised by the whistleblowing organisation Wikileaks, which was infamously out of the jurisdiction of the British and American courts.
Paul Farrelly, MP for Newcastle- Under-Lyme then used his parliamentary privilege to reveal details in the UK. The Guardian still concerned about contempt of court could only publish a headline that made it clear that there was a story about parliamentary workings that they could not reveal more about.
This headline led to independent news outlets and bloggers making the story public. MPs were upset that parliamentary privilege was circumnavigated and that parliamentary issues were being discussed publicly. After the information went public online, Trafigura told the Guardian that the super injunction was no longer binding.
CBT V New Group Newspapers Ltd 2011
The Ryan Giggs case was all over the newspapers that year and is probably one of the most well-known controversial super injunction. At the time a Manchester United footballer known as CTB was initially granted an interim order, which was then extended into a super injunction, with the aim to cover up details of his affair.
Again, the information was revealed by parliamentary privilege when MP John Hemming named Ryan Giggs after rumours spread on social media.
As Giggs had not applied for an interdict, the Scottish equivalent of a super injunction, the information was not restricted and was revealed by the Scottish newspaper, The Sunday Morning Herald. The paper initially revealed a veiled image of the footballer.
South of the border, the injunction was still legally in place despite the affair being public knowledge. This led to the Sun lodging appeals to the courts. Ten months after the application, Giggs gave permission for his identity to be revealed.
This case was highly influential and led to judges recommending super injunctions: “only be granted where they are strictly necessary”.
PJS v News Group Newspapers Ltd 2016
This is a more recent case where details protected by a super injunction were revealed to the public.
The Sun on Sunday attempted to get the super injunction applied for by PJS, later revealed to be David Furnish, the husband of Elton John, overturned.
Initially the court ruled in favour of Furnish citing that his rights under Article 8 of the European Convention on Human Rights were greater than the rights in Article 10 Freedom of Expression Rights that the newspaper argued gave them permission to publish the story.
The story then came to light in media in the US, Canada and Scotland. This led to judges to rule in favour of the newspaper when The Sun on Sunday took the case to the Court of Appeal in April 2016 and allow the story to published in England and Wales. The judge said: “Much of the harm which the injunction was intended to prevent has already occurred.... The court should not make orders which are ineffective"
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