UK Privacy ‘Super-Injunctions’ And Anonymity Orders: The Facts Behind The Fuss

The extent to which “super-injunctions” captured the British public’s attention is illustrated not just by the wall-to-wall press coverage they attracted during the first half of this year, but also by the distinction of having their own Wikipedia page entitled “The 2011 British privacy injunctions controversy”.

For those both in the United Kingdom and abroad who were bemused by the fuss, this article offers some background and explanation.

What Are Super-Injunctions?

Super-injunctions are privacy injunctions that prevent publication of the fact that the court has made an injunction. Or, in the somewhat longer definition adopted by the Committee on Super-Injunctions, they are interim injunctions

which restrain a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings

with (ii) representing the “super” element of the order.

The principle of open justice is a cornerstone of UK law. In general, it demands full public access to the courts, subject to certain clearly specified exceptions. A super-injunction is one such exception. In view of its radical departure from the principle of open justice (what could be more radical than concealing the very existence of legal proceedings?), the courts recognise that it is a procedure that ought to be used very sparingly, if at all. It is now clear that super-injunctions will be granted only in those rare cases where publication of the fact that an injunction has been ordered would frustrate the very purpose of the order or where there is some other unusual and compelling reason.

Contrary to some press reports suggesting that super-injunctions were rife and were being granted to celebrities almost on demand, super-injunctions have only ever been granted in rare cases. Since January 2010, according to the findings of the Committee on Super-Injunctions, only two super-injunctions have been granted. Of those, one was discharged on appeal and the other lasted for only seven days.

An example of a super-injunction arose in the 2008 case of Goldsmith and Khan v BCD. In that case, the claimants obtained injunctions to prevent the publication of e-mails hacked from their personal e-mail accounts. The claimants were granted anonymity at the same time, and a “super injunction” was also granted so nobody could say that the injunctions had been obtained at all. The court did this because, if the defendants had come to know that an injunction had been obtained before it was served on them, there would have been a real danger that they might publish the e-mails on the internet or destroy evidence that might lead to their identification.

The purpose of keeping the proceedings themselves private is to avoid alerting unscrupulous defendants to the existence of the proceedings in circumstances where the defendants, once aware that they’re facing legal action, may take steps to subvert the proceedings. In a case concerning privacy or confidential information, the most obvious way of subverting the proceedings would be to disclose the private or confidential information, possibly in return for payment.

Of course, as soon as the defendants are served with the proceedings, and thereby are subject to the enforcement powers of the court, there is no longer any justification for the super-injunction, and the existence of the proceedings need no longer be concealed. It is important that the restriction on open justice imposed by the terms of a super-injunction should last no longer than necessary. The super-injunction will therefore be discharged either at the “return date” (when the matter comes back before the court) or once the defendant has been served.

The position was explained by Tugendhat J in Terry v Persons Unknown (at ¶ 139):

If a prohibition of the disclosure of the making of the injunction is included in an order for the purpose of preventing tipping off, and if the order provides for a return date … then the prohibition on disclosure may normally be expected to expire once the alleged wrongdoer has been served with an injunction, or at the return date (whichever is earlier).

Anonymity Orders

In cases involving the alleged misuse of private information, the claimant frequently seeks an order that he or she should be anonymised in the court documents and in any report of the proceedings. Such orders are often granted.

This has been viewed by some sections of the media as an act of provocation. Certain newspapers have campaigned against what they see as an unjustified restriction on open justice imposed for no better reason than to protect undeserving celebrities from public embarrassment. The currency of the term “super-injunction” has indeed come about mainly through its misuse by newspapers to describe (and dramatise) such anonymity orders. As explained above, the defining feature of a super-injunction is not the anonymity conferred on the party or parties, but rather the restriction on disclosing the existence of the proceedings themselves.

The media’s concern about anonymity orders is not entirely misplaced. There is no doubt that, in many cases during the last few years, parties have been granted anonymity without there being any proper justification for such orders. In the case of Pink Floyd v EMI, for example, where the parties to a music royalties dispute had been anonymised in the High Court because it was considered that certain royalty figures were commercially confidential, the Court of Appeal said that, even if that was the case, it did not remotely justify the wholesale anonymisation of the proceedings. Commercial confidentiality could be protected in other ways without depriving the public of their right to know who was litigating a dispute in the public courts.

The basis for granting a party anonymity has been developed and refined in a number of cases during the last 12 months. It is accepted by the courts, if not by some sections of the media, that if a party or parties to a dispute about private information are not anonymised, that will in many cases undermine the very purpose of the proceedings themselves. There is plainly no point in suing someone to protect your private information if the act of suing results in the private information being disclosed. It does not take an enormous leap of imagination to appreciate that, if it became known that an actor was taking action against a newspaper to prevent it from publishing details of an extra-marital affair, that fact of itself constitutes a disclosure of the very information the actor is seeking to protect.

In deciding whether to anonymise any of the parties in proceedings before the English courts, the following principles apply:

1. An order for anonymity is a derogation from the principles of open justice. It may be made only if this is “necessary” on the facts of the case. The test is whether there is sufficient public interest in publishing a report of the proceedings which identifies the claimant such as to justify any resulting curtailment of his right to and his family’s right to respect for their private and family life: Secretary of State for the Home Department v AP (No. 2) [2010] UKSC 26.

2. The court’s decision whether or not to grant anonymity to a party is not the exercise of a discretion but rather is a matter of obligation, depending on the application of the above test: see AMM v HXW [2010] EWHC 2457 at [30] to [36].

3. If there is a serious risk that the private information which the injunction is designed to protect will emerge if the claimant (or another party) is identified, a provision for anonymity will usually be necessary: see DFT v TFD [2010] EWHC 2335.

4. The court must consider the extent to which identification of a party will interfere with that person’s Article 8 rights (his right to respect for private and family life under Article 8 of the European Convention on Human Rights). Not all threatened interferences with a person’s Article 8 rights will be sufficiently serious to justify an anonymity order: see JIH v News Group (No. 2) [2010] EWHC 2979 at [30] and [31].

5. Naming a party will not necessarily lead to the private information being disclosed. An alternative to anonymising the parties may be to restrict publication of the subject matter of the action: see, for example, Gray v UVW [2010] EWHC 2367 and Ntuli v Donald [2010] EWCA Civ 1276 at [55]. The principle of open justice requires the court to give judgment in a way that allows as much information as possible to be made publicly available so far as that is consistent with protecting the parties’ rights, including their Article 8 rights.

6. If, on the other hand, the subject matter of the case is disclosed in the judgment, the case for anonymity will usually be overwhelming. Even where the parties have been anonymised, the court may still, in appropriate cases, impose restrictions on what may be published to avoid the risk of “jigsaw” identification (putting various pieces of information together and thereby identifying the claimant): see, for example, DFT v TFD.

7. The public interest may often be better served if the media are permitted to publish 1) details of the type of case (e.g., a sexual liaison between a sportsman in an apparently monogamous relationship and a third party) rather than 2) the name of the individual who is seeking to protect an unspecified aspect of his alleged private life by means of an injunction. The former information would normally enable the public to have a much better idea of why the court acted as it did than the latter information.

8. Where there are grounds for believing the claimant has been subject to blackmail threats, there is a strong case for conferring anonymity: “The fact that the applicant has been blackmailed should not be published” (Sharp J in DFT v TFD).

9. The fact that the parties to the proceedings may consent to anonymity does not relieve the court of its obligation to consider the effect of an anonymity order on the Article 10 rights of third parties: see Gray v UVW at [33] and JIH v News Group at [3].

It is fair to say that, in cases where the court has decided that anonymity for the claimant is appropriate, the court has often been rather sparing in the details of the case which it then permits the press to publish (see point 7 above). This has encouraged a perception by the popular press that the court is not keeping its side of the bargain: If the trade-off for anonymity is more detail of the information about the case, it cannot be right for the courts to limit so severely the amount of that detail.

However, this perception fails to take full account of the courts’ distrust of the press. That distrust arises from a number of cases in which newspapers have pushed the limits of the court’s orders by means of a nudge and a wink to encourage their readers to speculate what private information may be in issue and who is seeking to protect it. An example of judges’ irritation at what they see as the misreporting of privacy decisions by the courts is to be seen at paragraphs 9 and 10 of Goodwin v News Group, where Tugendhat J identified a number of inaccuracies in media reporting of the privacy case by Sir Fred Goodwin, the former chief executive of RBS.

The Power of the Court to Enforce Super-Injunctions and Anonymity Orders

An order by the court is not going to be of much use to anyone if it cannot be enforced. The integrity of super-injunctions and anonymity orders has come under assault on two fronts: online social media and, more surprisingly, politicians.

Since privacy injunctions are a talking-point for the public, it is obvious that they will be talked about on social networking websites like Facebook and microblogging sites, in particular Twitter. It is equally obvious that those who discover the true identity of celebrities with secrets to protect will be anxious to share that information. Whether they have the information or not, they will be tempted to gossip and speculate.

To the extent that social media sites operate in the United Kingdom, or the communications can be shown to have originated in the United Kingdom, the court has the power to enforce its orders by bringing before it anyone who has the temerity to defy them. But what if the posters of protected information are themselves anonymous? And what if the sites are controlled overseas?

In the case of CTB v News Group Newspapers, a well-known married footballer obtained an injunction to prevent publication of the fact he was having an affair with another woman. He was granted anonymity on the ground that the purpose of the proceedings — the protection of his private life — would be undermined if he was publicly identified. Nonetheless, his identity did become known to a large number of people. Some of those people wrote about it on Twitter. It was impossible to identify those people without the co-operation of Twitter, which is based in the United States. If “CTB” had wanted to do anything about it, he would have had to get Twitter to agree to identify the person who had posted the material (or at least such of that person’s contact information as Twitter possessed); alternatively, it would have had to enlist the assistance of the U.S. courts to compel Twitter to disclose the information (see WDPR, June 2011, page 20).

As it happens, Twitter became rather less of a priority for “CTB” (Ryan Giggs) because, in the meantime, his identity was revealed in Parliament by a Liberal Democrat Member of Parliament, ostensibly because he considered it absurd that the courts should be protecting the identity of an allegedly adulterous sportsman, particularly when his identity was already widely known. (It is by no means clear just how widely known his identity was, although the Prime Minister had previously admitted in a television interview that he knew who it was.)

The identification of “CTB” followed an incident a few weeks earlier in which a Liberal Democrat member of the House of Lords decided to name Sir Fred Goodwin as the claimant in a privacy case. Until then Sir Fred had been known as “MNB” in consequence of an anonymity order granted by the court. The identification of Sir Fred was justified on the ground that there was a public interest in knowing that the former chief executive of a bank that had had to be bailed out by the British taxpayers was seeking to conceal an alleged affair with a senior executive at the bank.

Tension between the Courts and Parliament

The identification in Parliament of two litigants who had been given anonymity by the courts creates an obvious tension between Parliament and the courts. According to the retired Court of Appeal judge Sir Stephen Sedley, the naming of Fred Goodwin in the House of Lords and Ryan Giggs in the Commons is a “serious breach of constitutional principle”, offending the “historic compromise” whereby Parliament does not interfere with the decisions of the courts in return for the courts not impeaching or questioning proceedings in Parliament.

Sedley also lays into the media, not just for “exploiting” the Giggs and Goodwin cases, but also for “merchandising voyeurism” and double standards. He suggests that the tabloid press’s defence of its “right” to publish details of people’s private lives is bogus and dangerous:

Observers with a sense of history have noted that the tabloids’ self-justification, advanced in the name of press freedom, mirrors that of the authoritarian state. The Sun columnist Jane Moore admonishes errant public figures: ‘If you don’t want your private life splashed all over the papers, then behave yourselves.’ Or, as it was once put, if you have nothing to hide, you have nothing to fear — for there is only one way the state or the Sun can know whether you are behaving yourself.

In the meantime, the debate about super-injunctions and anonymity orders has been largely obscured in the phone-hacking maelstrom. There has also been something of a drop in the number of applications for privacy injunctions in the last few months.

However, the great British press is still alive and kicking, and as long as that situation continues, so will the debate over the protection of personal privacy.

Keith Mathieson is a Partner at Reynolds Porter Chamberlain LLP, London. He specializes in media litigation and is the editor and principal author of the Privacy Law Handbook (Law Society Publishing, 2010). He may be contacted at keith.mathieson@rpc.co.uk.