What is an injunction and who can use them?

We’ve seen and heard much in recent days about the rising use of injunctions to ‘gag’ the press, but what exactly are they?

Put simply, an injunction is a court order requiring the person, or people, on the receiving end to refrain from doing certain unlawful acts.

An injunction is usually granted after the unlawful act has been committed.  However, where it can be demonstrated an unlawful act is about to be committed, a court can grant an injunction to prevent it from being committed in the first place.

Injunctions are in the news because they are increasingly being used to prevent the publication of news stories relating to the private lives of public figures. However, they have also been used to ‘gag’ the press from reporting adverse stories regarding companies, most notably Trafigura which in 2009 sought to prevent the Guardian publishing details of a report that it had commissioned into a toxic-dumping incident in Ivory Coast.

The first thing a claimant seeking an injunction must persuade the court is that an unlawful act is about to be committed. Looking at celebrities and their private lives, injunctions are sometimes granted if the claimant can argue a story about to be printed is untrue and will cause damage to their reputation, because publication could amount to defamation.

However, since the Human Rights Act 1998 came into force, celebrities have increasingly been seeking to rely on the right to a private life enshrined in Article 8 as a basis for a ‘gagging order’ to prevent publication of stories about their personal affairs.

When considering whether to grant an injunction, the court has to balance the individual’s right to privacy with the right to freedom of expression contained in Article 10. As a result the courts have been willing to grant such ‘gagging orders’ in cases where they consider that the publishing of the story is not within the public interest.

In England and Wales judges are responsible for carrying out the balancing act between the right to privacy of the individual and the freedom of the press on a case-by-case basis, and this can lead to uncertain outcomes and is extremely costly. The cost of obtaining a super injunction, estimated to be in the region of £30,000 for the first application to court, means only wealthy individuals can apply for such injunctions and can, in effect, buy their privacy, whereas less wealthy people are not able to pay to enforce their right to privacy.

For these reasons, many commentators have called for parliament to look at whether a UK privacy law should be enacted so there is some clarity as to the circumstances under which the press should be prevented from publishing a story.

In the commercial world, the publication of confidential information could amount to a breach of contract or other duty owed between an individual and a corporate entity. If such an obligation were about to be breached by publication, such publication could be restrained by an injunction if the court thought it just to do so.

So what makes a super injunction, super? The term super injunction is a tag that has been given by the media to injunctions where part of the order prevents publication of the details of the case itself or even that the injunction has been made at all. The Guardian estimates that in the last 18 months 20 super inunctions have been granted, but this is a guess based on information leaked to them, as no one can be certain how many have been granted. One such injunction we do know has been granted was in favour of Andrew Marr, the BBC journalist, who has now decided to waive the privacy afforded to him under pressure from other journalists such as Private Eye’s Ian Hislop, who argue the use of super injunctions is curtailing the press freedom that journalists are trying to protect.

For the time being super injunctions are here to stay, and will no doubt be continued to be used in privacy cases until parliament enacts specific legislation to cover when it will be lawful to curb the freedom of the press.

If you would like advice on this, or any other legal issue, call Harrison Drury Solicitors on 01772 258321.