In its purest form, a ‘super-injunction’ refers to a legal gagging order which not only prevents the media from reporting the details of a story, but also forbids mention of the existence of the injunction itself.
They have their legal basis in the UK’s 1998 Human Rights Act, but have come to prominence in recent years.
The phrase ‘super-injunction’ was coined by The Guardian editor Alan Rusbridger, after the paper was prohibited from reporting the contents of an internal report by oil trader Trafigura into the alleged dumping of toxic waste.
The existence of the super-injunction was exposed when it was referred to in a parliamentary question; the principle of parliamentary privilege allows MPs to speak freely without fear of being prosecuted for contempt of court.
While newspapers refrained from reporting the question, Twitter users picked up on the story and eventually Trafigura’s legal firm Carter-Ruck withdrew its opposition to the reporting of proceedings.
Twitter has come to prominence once again with the latest round of super-injunctions, as users claim to name the celebrities alleged to have taken out gagging orders.
These latest injunctions have been widely dubbed as ‘super’, but they are not super-injunctions in the traditional sense – their existence can be revealed and certain details of each case can be reported.
They tend to refer to privacy orders preventing the publication of certain private information and information which might reveal the identity of the applicant.
For example, one of the current injunctions concerns a married Premiership footballer who allegedly enjoyed a six-month affair with Big Brother star Imogen Thomas.
Imogen’s name can be reported, as can the fact the footballer in question plays for a Premiership team, but other details – such as the footballer’s team – cannot be reported in the media.
Many have taken to online forums and social networking websites to ‘expose’ the celebrities involved, as the internet is much harder to regulate than traditional media outlets.
Several celebrities alleged to be those subject to super-injunctions have been named on Twitter and Wikipedia, but the media’s inability to name the public figures involved has meant innocent celebrities being named.
Last week BBC presenter Gabby Logan was forced to deny an affair with former footballer and TV pundit Alan Shearer, while yesterday Jemima Khan denied she was the subject of a gagging order preventing publication of ‘intimate’ photos with Jeremy Clarkson.
Many legal experts have said the widespread online speculation concerning the content of super injunctions has rendered them pointless – but others also warn that people publishing details online could face legal action.
Users reporting details of injunctions could be found guilty of contempt of court and sued for invasion of privacy, while those reporting false accusations could be sued for libel.
For your media law questions please contact Arthur McDonalds Solicitors.