‘Super’ and anonymous privacy injunctions in the UK

The “super injunction” has been a widely discussed English legal phenomenon since late 2009, when the Guardian newspaper drew attention to an oil trading company’s attempt to restrict publication of a report relating to the waste dumping scandal in Côte d’Ivoire.

But sometimes the British press cries “super injunction” when it’s simply not. A super injunction is when the injunction’s existence cannot be reported – as in the aforementioned Trafigura legal battle (2009) and in the case involving England footballer John Terry (2010).

As media lawyer Mark Thomson explained in a footnote on the Inforrm media law blog last year: “The ‘superinjunction’ part of the order is the restraint on publication of the existence of the proceeding”.

So the case of ZAM v CFW and another [2011] EWHC 476 (QB)], despite media reports to the contrary, did not involve super injunction – as freelance lawyer and former Guardian readers’ editor Siobhain Butterworth confirms in an article here.

Interestingly, ZAM is a libel, not a privacy case: the anonymous Claimant applied for an interim injunction in libel and under the Protection from Harassment Act 1997 to prevent the publication of statements about the Claimant’s management of family trust funds. But that’s for another debate…

Very limited information is available about private injunction hearings in English courts, and this is something that needs to be addressed. More courts data should be made accessible to the media and the general public.

Twelve months ago, the Master of the Rolls, Lord Neuberger, formed a committee of media lawyers and judges to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions” and it is due to report by the end of April.

In the meantime, in collaboration with the Inforrm blog – using public documents and information supplied by legal observer Benjamin Pell and the clerks to the Jury List judges – I have attempted to collect as much information as possible about anonymous privacy injunctions between January and March 2011.

Contrary to what you might expect, it appears that there are very few privacy injunctions against the media directly. There appear to have been 11 relevant hearings in the first three months of 2011, seven of which resulted in “public” (although not always “published”) judgments and two in which judgment is awaited. There appear to be two injunctions granted against media defendants. None of these injunctions are “super” in nature – in all cases the existence of the injunction can be reported, although in most cases the names of the defendants and claimants cannot.

The cases defended by a newspaper group were, in reverse chronological order, as follows:

ETK v News Group Newspapers, an injunction granted by the Court of Appeal after a hearing on 10 March 2011, the judgment is awaited.

MNB v News Group Newspapers [2011] EWHC 528 (QB), injunction granted by Henriques J on 1 March 2011. Newspaper defendant agreed to its continuation. Publication interest justification for publication abandoned. Sharp J made further orders.

There were eight hearings involving individual defendants – some of whom had threatened to provide information to the media. As far as we are aware, none of the orders made were challenged by media organisations on public interest or other grounds. These were, again in reverse chronological order, as follows:

CBL v Person Unknown or Persons Unknown, (29 March 2011), Sharp J. We have no information about this injunction.

Goldsmith v BCD [2011] EWHC 674 (QB), (22 March 2011) Tugendhat J. This was a renewal of a 2008 injunction against an individual. It was not suggested that there was any media interest in publishing the information or public interest.

RJA v AJR, (4 March 2011), King J; (18 March 2011), Sharp J and (22 March 2011), Sharp J. We believe that an ex tempore public judgment was given in this case.

YYG v PJK¸(11 March 2011), Sharp J. We have no information about this injunction.

ZAM v CFW and another [2011] EWHC 476 (QB), (7 March 2011), Tugendhat J. An interim injunction in a libel case, along with an anonymity order. The Inforrm blog published a case comment and a further post about the media coverage.

Hirschfeld v McGrath (4 February 2011), Teare J, [2011] EWHC 249 (QB), Tugendhat J. An injunction to restrain the publication of intimate information concerning the relationship between the parties when they were married. There was no media interest and no assertion of public interest.

YYZ v YVR [2011] EWHC 274 (QB), (4 February 2011), Eady J. Extended an injunction granted originally by Supperstone J on 27 January and continued by Eady J on 28 January. The injunction prevents the defendant revealing the content of an email sent mistakenly to the defendant by the claimant. The judge found that “it could not conceivably be argued, for example, that any genuine public interest attached to the content of the claimant’s email”.

OPQ v BJM [2011] EWHC 160 (QB), (2 February 2011), Eady J. An injunction apparently granted to restrain the publication of information by a private individual (see the Daily Telegraph). Mr Justice Eady described it as a “straightforward and blatant blackmail case“. The evidence shows that negotiations were attempted with a newspaper group to sell intimate photographs and/or other information obtained in circumstances which were self-evidently private. The judgment says that:

“A large sum of money was apparently being discussed with Associated Newspapers, but an agent acting on behalf of BJM made contact with the claimant’s solicitor last Saturday evening and said that she, the first defendant, would rather do a deal with him. It was thought that the claimant might prefer to pay some money at that stage to make the problem go away for good.”

Eady J received a letter from solicitors for Associated Newspapers saying that he should reveal more about the claimant’s identity but the judge did not deem it appropriate. Citing JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 at [40], he said: “It is necessary to take steps sometimes, and this is such a case, to minimise the risk of jigsaw identification rather than encourage it.” There was a further hearing in this case on 6 April 2011. Judgment was reserved.

POI v A person known as ‘Lina’ [2011] EWHC 25 (QB) Tugendhat J (13 January 2011) and [2011] EWHC 234 (QB), Supperstone J (26 January 2011) – An injunction to restrain the publication of photographs by blackmailer where no public interest in publication was asserted and there was no media intervention.

What else do we know?

The director of editorial legal services at Guardian News & Media, Gillian Phillips, has received three anonymised privacy injunctions between 1 January and 31 March 2011 but no “super” injunctions. Additionally, there were a number of court reporting restrictions in children and criminal cases and an order from the Court of Appeal in an immigration case that prevents the newspaper naming the individual concerned.

More privacy hearings took place in April, but we have not yet obtained information about these. While we should continue raising questions about “super injunctions” and the use of anonymous injunctions restricting the media’s ability to report court proceedings, there is a more pressing need for raw information direct from the courts.

It is believed that a draft “super injunctions” report has now been considered by members of Lord Neuberger’s Committee; ideally it will make positive recommendations to improve the transparency of privacy injunction hearings and better inform the media debate.

You can read more details about the privacy hearings and injunctions at this link.

Judith Townend is a freelance journalist and PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com and is @jtownend on Twitter.