Super-injunctions in English law
In English tort law, a super-injunction is a type of injunction that prevents publication of information that is in issue and also prevents the reporting of the fact that the injunction exists at all. The term was coined by a Guardian journalist covering the Trafigura controversy. Due to their very nature media organisations are not able to report who has obtained a super-injunction without being in contempt of court. The term super-injunction has sometimes been used imprecisely in the media to refer to any anonymised privacy injunction preventing publication of private information. Critics of super-injunctions have argued that they stifle free speech, that they are ineffective as they can be breached using the Internet and social media and that the taking out of an injunction can have the unintended consequence of publicising the information more widely, a phenomenon known as the Streisand effect.
Terminology
The Neuberger Committee notes that the terminology surrounding privacy injunctions has been used imprecisely and the term "super-injunction" has been used to refer to:- Injunctions that provide anonymity for one or both parties.
- Injunctions that prohibit reporting of the substantive facts and proceedings of a case.
- Injunctions that provide anonymity for one or both parties, prohibit reporting of the substantive facts and proceedings of a case and prohibit access to court files.
An anonymised injunction is a type of injunction which restrains a person from publishing information concerning an applicant that is said to be confidential or private. An anonymised injunction differs from a super-injunction as it does restrain the publicising or informing of others of the existence of the order and the proceedings. The term "hyper-injunction" has been used to describe a type of super-injunction that also forbids a person from discussing the issue in question with journalists, lawyers or Members of Parliament. Such injunctions have been criticised as anti-democratic and the former Liberal Democrat MP John Hemming used Parliamentary privilege to reveal the existence of a hyper-injunction surrounding an allegation that the type of paint used in water tanks on some passenger ships could break down and release toxic chemicals.
Cases
Due to their very nature it is not possible to say exactly how many super-injunctions exist or have been issued. The Neuberger Committee that examined super-injunctions stated:“at present, there are records of only a limited number of cases; specific records are not at present kept in respect of such matters”. The Neuberger Committee report does not specify how many have been granted in the past but does state that only two super-injunctions had been granted since the John Terry case: Ntuli v Donald EWCA Civ 1276) and DFT v TFD EWHC 2335. The Daily Telegraph have reported that 12 super-injunctions exist. Below are known super-injunctions that have become public:
| Case | Method of Revelation |
| RJW v Guardian News and Media Ltd | Paul Farrelly, MP for Newcastle-under-Lyme, had tabled a parliamentary question revealing the existence of the injunction. |
| Ntuli v Donald | A super-injunction was granted but later discontinued. |
| DFT v TFD | A super-injunction was granted but later discontinued. |
| Terry v Persons Unknown | Application for a super-injunction was rejected. |
| Andrew Marr and anonymous | Issued in 2008, its existence was revealed by Andrew Marr in a 2011 interview. |
| NMC v Persons Unknown | The Guardian report that a case with this name exists and that it is a former super-injunction. Laura Scaife's Handbook of Social Media and the Law also refers to this case as a super-injunction but the facts of ths case are not known. The order date of the super-injunction is 09/02/2009. |
| Christoper Hutcheson v News Group Newspapers | Super-injunction granted but the courts later refused to continue it. |
| WER v REW | Super-injunction granted but later discontinued. |
Several cases have been inaccurately described as super-injunctions in the media. These include:
| Case | Notes |
| MNB v News Group Newspapers | Incorrectly referred to as a super-injunction by John Hemming MP in the House of Commons. |
| PJS v News Group Newspapers | Incorrectly referred to as a super-injunction on social media. |
Disclosure
There are several ways in which the public can learn of a super-injunction:| Instance | Example |
| When a judge refuses to continue a super-injunction | In DFT v TFD a super-injunction was granted but later discontinued |
| When parliamentary privilege is used to reveal an injunction | RJW v Guardian News and Media Ltd |
| When a super-injunction is breached in contempt of court | |
| When a super-injunction is reported somewhere outside of the jurisdiction of English courts | |
| When a person who has taken out a superinjunction volunteers this information | Andrew Marr and anonymous - issued in 2008, its existence was revealed by Andrew Marr in a 2011 interview |