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Five Minute Tute: Super-injunctions

What is a ‘super-injunction’?

A super-injunction is a type of interim prohibitory injunction — an order made by a court which temporarily prohibits someone from doing something. In most cases, it prevents a person from publishing private or confidential information about the claimant and disclosing the existence of the injunction or the legal proceedings to others. Super-injunctions differ from “anonymised injunctions”, which prohibit publication of the names of litigants, but do not prohibit disclosure of the injunction itself. Importantly, both orders are temporary: they are granted in order to preserve the status quo until trial, but the secrecy they confer is generally short-lived. A valid super-injunction binds both the parties and anyone who has notice of the injunction. If you knowingly breach the terms of an injunction, you are potentially liable for contempt of court, which carries penalties ranging from fines to imprisonment.

Are they ever justified?

Despite the recent hype, super-injunctions are very rarely granted. The media often confuses them with anonymity orders, which are commonplace and less problematic. Mr Cameron’s recent criticism of super-injunctions suggests that they are “new laws”; in reality, they are procedural orders giving effect to existing privacy rights under article 8 of the European Convention on Human Rights, which was transposed into domestic law by Parliament over a decade ago in the Human Rights Act 1998 (UK). Super-injunctions have mainly been granted in privacy cases or to protect commercial trade secrets. In both cases, the claimant must show that it is likely to succeed at trial and that the super-injunction is necessary to preserve the administration of justice. Most commonly, these cases involve some allegation of blackmail, fraud or a serious invasion of privacy (such as phone-hacking). They also tend to involve the rich and famous, though anyone could, in theory, apply for one in appropriate circumstances.

Why are the press therefore so critical of super-injunctions?

Journalists have criticised super-injunctions on two main grounds: first, that they undermine the principle of ‘open justice’, which requires that court proceedings be heard in public courts; and second, that they hinder freedom of expression. Both are fundamental principles but they are not without limitation. Whether super-injunctions can be necessary and proportionate limitations remains a matter of debate, and must be assessed in individual cases.

Can Twitter or its users be liable for breaching such an injunction?

Potentially yes. Anyone with notice of a super-injunction (which should, in theory, be very few people) can commit a contempt of court if they deliberately breach its terms. This is so even if the information has ceased being confidential — because, for example, the relevant name is ‘trending’ in Twitter — though most injunctions now have a proviso to permit publication of information that is already widely known. The personal jurisdiction of English courts generally does not extend to acts committed in other countries. Accordingly, even if it could be said that Twitter, by automatically publishing contemnors’ tweets, was itself publishing the relevant information, it could not commit under English law a contempt of court in California.

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