Super-Injunctions

So, a beginner's guide and a rant at where it's all gone wrong.

So, what is an injunction, and what makes them 'super'?
An injunction stops someone from doing something. They are used in many circumstances, sometimes in business to stop people breaking contracts, infringing copyright or patents, or -as has been seen - in family law to prevent people saying things. The main reason to obtain an injunction is to transfer what may otherwise have been a civil (or financial) penalty into a criminal penalty, thus reflecting that sometime money alone is not good enough to protect a reputation or business.

An injunction prevents whatever it is protecting from being done or said or published. But it can still be reported that a particular person has obtained an injunction. A super-injunction prevents even the fact that the particular person has obtained an injunction being disclosed.

So what's the problem?
Well, two reasons. Firstly, one of the basic tenets of English law is that justice is open. Justice not only has to be done, but seen to be done and reported. And super-injunctions offend this.

Secondly there is a conflicts of interests. Since the Human Rights Act came into force in 1999, two rights have been enshrined in law: the right on one hand to a private and family life; and the rights of freedom of expression and freedom of the press on the other. Yes, technically it is three rights, but the latter two compliment each other.

So why give anyone a super-injunction?
Technically they ought to be a temporary measure, preventing the release of information whilst the ultimate case is heard. However in family cases super-injunctions are used to prevent the release of information which has the potential to harm the welfare of an individual.

Let's be clear about this, it has to be 'information', anything which is false can also be prevented under libel or slander, although these cases will often involve an injunction preventing the libeller from attempting to spread the lies. But in the majority of super-inction cases it has prevented the publication of information which is truec but the publication has the very real potential to cause harm.

And it does have to be 'very real' potential. The tenet of open law is so fundamental to the English legal system that only in the most exceptional circumstances can it be overridden.

So why grant super-injunctions at all?
To prevent that harm occurring, and to protect that individual's right to a private and family life.

To me, the step from injunction to super-injunction is not so great or concerning as the media makes out. But then the media is the injured party here, being prevented from doing what it does: publishing stories; and so is naturally biased and exorting about how it's rights have been overridden.

The step really isn't that huge. If the media is being prevented from publishing the information in the injunction, why should they be able to publish the name and everything-but that particular information?

The media makes a very big thing about the play-off between the two sets of rights: private and family life; versus free press and expression; however by far and away the greater concern behind either injunctions or super-injunctions is the overriding of that basic tenet of.English law: open justice.

This is why the bar to obtaining a super-injunction is set so high. Indeed the press really is barking up the wrong tree by arguing their freedoms are being overridden. In balancing out the rights of private v publication, there is always going to be an implied preference to allow people a private life, and breaching that can only be "in the public interest" (which is the basis for a preference for publication) where that particular individual holds or has placed themselves in a position of real or perceived responsibility or mor ask high-standing; and where publication will prove that position to be unjustified.

In the case of most of the tattle which is going round, that cannot be said. It is tattle: it is rubbish an insignificants about affairs and sexuality and other such irrelevances which cannot be justified as being "in the public interest". It is not leaking crime ir corruption or lies which go to the heart of government or business or justice, it's about a football who had a night with a hooker. It is not in the public "interest", it is only in public gossip.

In the past certain people have argued that they need a super-injunction on the basis that there is the very real potential to cause harm to their commercial interests. John Terry for example argued that publication of his affair could harm his sponsership deals. Very correctly he was denied a super-injunction. If you want to protect your commercial interests you have to do that yourself, by not putting your willy in any woman who will take it.

Moreover, there are competing commercial interests, usually coming from the party wanting to sell the story to a paper, or the paper wanting to use the story to sell more papers.

The only justification for a super-injunction is where otherwise would be to expose the welfare of an individual to potential harm; usually the child of an affair. It can be used to protect a "non-celebrity" who has not chosen to live any of their life in the public domain in the same way as a celebrity and therefore the justification of publication in the public interest is much more difficult to establish. Note here that it is not an argument that the non-celebrity has any greater right to a private life because they don't, everyone's entitlement to that right is the same.

Also, a key point to remember is that the starting point is always that of open justice, always that the information should be available and publishable all the way up until the point where it is proved that there is a very real potential for harm.

Maybe, rather than saying anything about super-injunctions or justice, this latest glut has actually said more about the culture of celebrity, gossip, and the media's distorted perception of the public interest