Super-injunctions: privacy vs openness
There has been much controversy in recent months about the use of ‘super-injunctions’ to prevent the press and broadcasting media from reporting details of the private lives or confidential affairs of the rich and powerful. (I leave to one side the very practical question of the extent to which such super-injunctions can – because of Twitter and other social e-media – actually be effective in keeping the lid on confidential matters.)
Much press reporting of the issue might lead to one the view that the development of super-injunctions has been the result of the senior judiciary seeking to develop new legal principles, in the teeth of opposition in Parliament. (Of course there is nothing new in this as an idea – many of the fundamental principles of the law of England and Wales have been developed by the senior judiciary.)
The recent publication of the report on super-injunctions, written by the Master of the Rolls – who led a team of experts, including representatives of the press – seeks to offer a more reasoned analysis of what has been happening.
This shows, first, that it was Parliament that, by enacting the Human Rights Act 1998, created the conditions in which the judiciary was required to balance the competing rights to freedom of expression and privacy in individual cases.
The report also emphasises that there is an important distinction to be drawn – which recent reporting has often failed to do – between ‘super-injunctions’ and ‘anonymised injunctions’.
A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.
An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.
Again, contrary to the impression given in many press reports, since January 2010, only two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. In practice, super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.
While there has been an increase in the number of cases which are anonymised, the law on anonymisation has been clarified in two recent Court of Appeal decisions. When anonymised orders are made, the court should wherever practicable provide a reasoned judgment for its decision.
The Committee produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.
The Master of the Rolls has asked HMCTS to monitor these cases in future to see whether the changes to procedure proposed are having the desired effect.
The full report of the Master of the Rolls’ Committee can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf