Q&A: Super-injunctions

A report by top judges has recommended changes to the way the courts deal with so-called super-injunctions and other anonymity orders in important cases.

What was the purpose of this report - and who wrote it?

Lord Neuberger, the Master of the Rolls and head of civil courts in England and Wales, and other judges have produced a report examining how and when judges can grant someone anonymity to protect their privacy in a so-called "super-injunction". The report does not cover anonymity and secrecy in other branches of the law, such as family proceedings or national security cases.

So what is a super-injunction?

There are different types of injunctions and a super-injunction is the most powerful. A super-injunction stops anyone publishing information about the applicant which is said to be confidential or private - but also prevents anyone from reporting that the injunction itself even exists.

How does a super-injunction work in practice?

Taking a hypothetical case, a Premiership footballer asks the High Court to stop a kiss-and-tell story from appearing in next weekend's papers, saying that he is a victim of wrongdoing and blackmail by the other party.

If the judge agrees to a super-injunction, the newspaper cannot report the allegations - and it is also prevented from saying that the footballer went to court to gag the paper. If the newspaper breaks the injunction, the editor could be prosecuted for contempt of court.

What other injunctions exist?

A court can make an anonymised order. Lord Neuberger's report describes an anonymised order as an injunction that stops someone 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."

So how many injunctions are there which are either supers or anonymised?

We don't know exactly and the report says the Ministry of Justice should start collating figures. Since January 2010 two super-injunctions have been granted. One was overturned on appeal and the second was only enforced for seven days. The report says super-injunctions are now only being granted for very short periods and only where this level of secrecy is necessary. However, at the same time, there has been an increase in anonymised orders where the names of the parties involved are kept from the public, but not the existence of an injunction.

Who created super-injunctions? Was it the judges?

Judges don't make new laws - Parliament does. The problem over super-injunctions has come about because judge must interpret what exactly Parliament means in a particular law.

In 2000, the European Convention on Human Rights became embedded in British law - creating a right to privacy enforceable by the courts. The legislation simultaneously created a competing right to freedom of speech. Parliament said that these two rights had to be balanced - and the judges were left to work that out.

So does this report change the law at all?

Again, no. The report makes clear that the judges were not "vested with any authority to enlarge or reduce" the rights to privacy or freedom of expression.

In April, Prime Minister David Cameron waded into the debate saying he felt "uneasy" about super-injunctions and said that judges were developing a privacy law without Parliament's say so. But the day before the report's launch, Culture Secretary Jeremy Hunt ruled out a new privacy law.

So while the judges cannot change the law, they have proposed making it simpler for the public and media to know what is going on.

So how will they do that?

The report says that judges who are asked to grant injunctions should make sure that the media know about the application in advance. In effect, that means that the media or other members of the public will have a greater and clearer opportunity to contest orders before they happen.

Who currently has a super-injunction?

The BBC cannot tell you because that would mean it would be breaking the super-injunction and its reporters would be in contempt of court.

But I can read about them on Twitter?

Allegedly. Speaking at the report's launch, Lord Judge, the Lord Chief Justice, did not rule out the possibility of specific future measures to prevent people spreading stories online.

He said: "Are we really going to say that somebody who has a true claim for privacy, perfectly well made, which the newspapers and media can't report, has to be at the mercy of somebody using modern technology?

"At the moment that may seem to be the case, but I'm not giving up on the possibility that people who in effect peddle lies about others [by using modern technology] may one day be brought under control, maybe through damages."

What about Parliamentarians? Haven't they been busy busting super-injunctions?

MPs and peers have the protection of Parliamentary Privilege - the law which basically protects everything they say and do in the Houses of Commons and Lords. The law exists to protect Parliament's right to do its work without interference.

Lord Neuberger said however that the law on Parliamentary Privilege is "astonishingly unclear" and he asked whether it was a "good idea" for lawmakers to be "flouting a court order just because they disagree".

As for journalists repeating what allegations made in Parliament, the committee's report says: "It is an open question" whether publishing information that breaches a court order and was deliberately intended to do so, would have legal protection because it could have been done in malice."

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