What is a super-injunction and can YOU get one?
There is much confusion over the types of injunctions available to Claimants in privacy cases. The relief available comes in three main forms:
- Traditional injunction – naming the parties but preventing publication of the underlying facts;
- Anonymised injunction – This is the more common form of injunction which permits publication of the existence of the injunction but not the names of the parties;
- Super-injunction – this is a beefed up version of the anonymised injunction. It is rare and states that even the existence of the injunction cannot be published.
In essence all of the above injunctions are a legal document handed down by a judge which prohibits one person or a group of people from taking specific actions. Breaching an injunction is contempt of court and can carry a criminal punishment. However, the media have often tried to fight injunctions on grounds of free speech, arguing that there is a public interest in the information. Judges have to balance the Claimant’s right to privacy, under Article 8 of the European Convention on Human Rights, against the media’s right to freedom of expression, under Article 10 of the European Convention on Human Rights.
Concerns have been expressed that super-injunctions pose a threat to freedom of expression and the principle of open justice. Judges have become far more cautious about granting super-injunctions as there have been instances where the system has been abused, however there are instances were super-injunctions and anonymised injunctions are appropriate.
Claimants need to think carefully about whether to invest significant resources in obtaining and enforcing super injunctions or anonymised inunctions. Although they can be effective, if there is a likelihood of the story ending up in foreign press or on social media then their value will be short lived as the English Courts can do little unless the foreign publications have UK assets.
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