A Continuation Of The Super-Injunction Saga: Is There An End In Sight?

A Continuation Of The Super-Injunction Saga: Is There An End In Sight?

Andrew Baker is an LLB/BCL candidate at McGill University Faculty of Law.

Recent developments in the UK, including the notorious case of a famous footballer and a report from Lord Neuberger, have once again called into question the use of the super-injunction as a method of protecting privacy prompting responses from MPs, the judiciary, and even the Prime Minister.

For those still unfamiliar with the term, a super-injunction pertaining to privacy goes beyond the scope of a traditional anonymised injunction in that all facts pertaining to a case remain private rather than just the identities of the parties.  IPOsgoode has covered many of the problems arising from these forms of injunctions including the suppression of free speech, their increasing use by celebrities and public figures, and their questionable efficacy in an age of social media.  These issues have alarmed many commentators who have called for reforms to the way in which super-injunctions are granted in the UK.

The latest twist in the story is the case of UK footballer, Ryan Giggs (it’s safe to say his name now), and his affair with reality star Imogen Thomas.  The claimant, Giggs, known as CTB in the proceedings, was granted an injunction against not only revealing his identity, but reporting any facts of the affair not contained within the decision in order to maintain his and his family’s right to privacy.  Nevertheless, details of the affair were widely reported on Twitter, again calling into question the efficacy of super-injunctions when well-known figures are involved.

In response to the perceived silliness of gagging the print-media while a story makes the social media rounds, a Scottish newspaper published a photo of Giggs with a thin “censored” strip across the footballer’s eyes, effectively revealing his identity.  Also, MP John Hemming identified Giggs’ by name in the House of Commons to protest the impracticality and over-application of privacy injunctions.  Hemming’s comment was protected by parliamentary privilege, an issue in previous super-injunction cases.  Nevertheless he received a warning from the Speaker for attempting to flout the law by naming Giggs, rather than making his point in terms of a general principle.

In response to an alleged information leak, the complainant, CTB/Giggs, sought specific disclosure against the defendant, News Group Newspapers (NGN).   In response, the defendant, NGN, claimed that the ease of access to Giggs’ identity rendered the injunction pointless and sought to have the anonymity requirement dropped.  Justice Eady denied both claims.  The decision to uphold the injunction was justified on the grounds that the “Modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion,” and that, “wall-to-wall excoriation in national newspapers, whether tabloid or ‘broadsheet’, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals.”

While the Giggs case unfolded, Lord Neuberger released a report representing the culmination of a year-long inquiry by a committee of judges and lawyers into the issue of super-injunctions. Criticisms citing inefficacy and the argument that super-injunctions infringe too strongly on freedom of speech had prompted the judiciary to establish guidelines to ensure a proper balance between the interests of all parties involved.  The report has advised that when secrecy is deemed necessary, it is important that the rationale for secrecy is articulated as clearly as possible and that the injunction be granted for the shortest time possible.  Moreover, Lord Neuberger’s report stated that the media should be able to contest the granting of super-injunctions and that despite privilege, it would still be possible for Parliamentarians to be found in contempt for revealing protected information in some instances.  See here for a review of Lord Neuberger’s recommendations.

Prime Minister, David Cameron, who had previously raised concerns about how judges granted injunctions by stating that Parliament had not given sufficient guidance to the judiciary, described the report as “useful” and noted that it would be “very carefully” considered.  Nevertheless, the report deals mainly with procedural concerns.  Considering how technology is rendering current laws out-dated, some argue that future changes to the substantive law may be necessary as well.