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| Image: 'Andrew Marr super injunction' by ssoosay |
What are super injunctions?
Super injunctions are injunctions granted by the court that place an indefinite ban on the reporting of a legal dispute; not only of the parties involved but of the fact that such restrictions exist. Super injunctions are not against any one media organisation or person but against everyone.
The genesis of the super injunction lies in the European Convention on Human Rights, which at Article 8 states 'everyone has the right to respect for his private and family life, his home and his correspondence'. This instrument was codified in English law under the 1998 Human Rights Act. The reasoning behind super injunctions is that if a court has ruled that a matter should not be in the public domain, the reporting of that ruling will itself make the matter public and thus defeat the purpose of the injunction.
Who is being granted super injunctions?
It has been reported in the last few weeks that the most common applicants for super injunctions are high profile people seeking to prevent their (often extra-marital) indiscretions from reaching the press. The reported price of £100,000 to obtain such an injunction means that this is an instrument of damage control available only to those with significant financial resources.
In mid-April, a BBC journalist, Andrew Marr, revealed that he had taken out a super injunction against a woman with whom he believed he had fathered a child following an extra-marital affair. Marr admitted that he had abandoned the injunction after becoming embarrassed by the hypocrisy of obtaining a gagging order against members of his own profession, and concerns that the use of super injunctions were 'running out of control'. Due to their very nature, it is not known how many super injunctions are currently in place; however the Guardian has reported being served with no less than twelve so far in 2011 alone, while the BBC stated that it believed thirty or more are currently in place.
Twitter and contempt of court
Controversy erupted when a Twitter account called 'superinjunctions' was created which purported to reveal the identities of several celebrities that had taken out super injunctions, along with the reasons for the injunctions. Some of the public figures named have strenuously denied the allegations made against them on the site; it was reported last week, however, that a well-known actor was prompted to admit a dalliance with a prostitute to his wife following his identity being revealed on Twitter.
Although the relevant information has now been redacted from the account's feed, news outlets across the world have been freely reporting the information published on the feed, prompting questions as to the validity and effectiveness of purportedly far-reaching injunctions in an age where information can be broadcast instantaneously across international borders by anonymous sources.
The 'superinjunction' account holder is arguably in contempt of court on several counts, as is anyone who 'retweets' (ie re-posts) any tweets that repeat restricted information. However, the logistical difficulty of tracking down each offender creates complications. Although Twitter, in its privacy policy, reserves the right to disclose the personal information of account holders if it is reasonably necessary to comply with a law, regulation or legal request, it has so far maintained silence on the issue, beyond stating that it 'doesn't comment on individual accounts'.
Twitter's terms of service (which all Twitter users are taken to have agreed to and be bound by) are governed by Californian law and state that all claims brought in connection with Twitter must be brought solely in that jurisdiction. The Twitter terms include a limitation of liability in favour of Twitter for, amongst other things, any conduct or content of any user, including any defamatory, offensive or illegal conduct. The terms also provide that users may not utilise the service for any unlawful purpose or for the promotion of illegal activities, and that international users agree to comply with all local laws regarding online conduct and acceptable conduct.
It seems clear that any Twitter account holder who breaches a super injunction has also breached Twitter's terms of service; yet it remains to be seen whether Twitter will intervene, either by cancelling the offending users' accounts or handing the identity information of the 'superinjunction' account holder to the English courts.
Effects on English privacy law
In a country renowned for the ferocity of its press, and in the wake of the Daily Mail phone tapping scandal, a battle is being waged between the papers and the people who grace their front pages. Former Formula One chief Max Mosley recently had a case rejected by the European Court of Human Rights (ECHR) in which he argued that newspapers and other media outlets should pre-notify an individual who was the subject of a story that impeded on that person's privacy. The ECHR described the effect of such a pre-notification requirement as 'chilling'. Mosley has subsequently stated that he intends to appeal the decision to the Grand Chamber of the European Court of Human Rights.
David Cameron has argued that it is Parliament, not judges, who should decide on the balance between press freedom and privacy. Whether it is through legislation or the courts, the past few weeks have shown that privacy laws need to be updated to address the formidable issues raised by new media.
Partner: Paul Kallenbach
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