Super-Injunction
What is a super-injunction?
A super-injunction is a form of court order available in England and Wales (but not in Scotland, where the equivalent to an injunction is an interdict, although so far there is no 'super interdict'). It is a two-tiered 'gagging order' and more rigorous than a normal injunction. An injunction prevents newspapers from printing allegations about a public figure or an organisation. A super-injunction goes a step further and stops them from reporting on the existance of the injunction itself.
How did super-injunctions come about?
In 2000 the Human Rights Act introduced the European Convention of Human Rights (ECHR) to the United Kingdom, including the right to privacy. Arguably, this right conflicts with another ECHR right, the right to freedom of expression, which allows the right of the press to publish. The two rights have been at odds with each other ever since. Parliament stated that these two rights should be balanced and left it up to the courts to do this. The courts subsequently created ECHR-compliant injunctions, then super-injunctions.
The first (known) super-injunction
In October 2009 the first major use of a super-injunction was reported by The Guardian in relation to the oil company Trafigura and their alledged waste dumping in the Ivory Coast. This led to great debate among the public and within the House of Commons where the Justice Minister at the time stated that the government was concerned by the use of super-injunctions.
Why are MPs allowed to breach a super-injunction ?
MPs have the right of parliamentary privilege under the Parliamentary Papers Act 1940. This allows MPs to speak freely in parliament without risking liability for slander or contempt of court. It is legal to report on any matter raised in the House of Commons, therefore, any news outlet can circumvent an existing super-injunction simply by reporting parliamentary proceedings.
Can I breach a super-injunction via an internet website ?
With over 75,000 people mentioning a famous footballer's name on Twitter, it appears that an individual may be able to post speculative comments on the internet without risk. However in a report on super-injunctions by Lord Neuberger, he did not rule out the possibility of specific future measures, perhaps aimed at preventing people from spreading stories online in breach of a super-injunction. He stated that individuals may be subject to compensation orders.
Can I apply for a super-injunction in Scotland ?
As the Scottish legal system is distinct and independent from its English equivalent, it is not possible to obtain a super-injunction from a Scottish court. In effect there is no Scottish equivalent to a super-injunction. The Court of Session refuses to grant a 'super-interdict' in Scotland. However an individual in Scotland can apply for a general interdict, which is similar to an ordinary injunction in England.
Can I apply for a super-injunction ?
Yes you can in theory, although in practice specialist solicitors can be extremely costly, and the whole business of super injunctions is arguably creating a two-tier legal system where only the rich can afford to protect their private life while the general public cannot.
May 2011, David Young, Law Student