In England and Wales, super-injunctions, gag orders that prohibit the press from reporting the details of a legal case are at the center of a country-wide controversy that raises questions about freedom of the press, freedom of speech, online censorship, the effect of European treaties on the UK legal systems and fundamental constitutional issues regarding the relation between the judiciary and parliament.
What are super-injunctions?
Super-injunctions were originally put in place to protect individuals whose lives might be at risk should their identities and actions be made public. However, with the passing of the 1998 Human Rights Act, which wrote into UK law the European Convention on Human Rights, British judges began to use a passage of the Act to extend the powers of these legal rights to cover the right to privacy.
The first outcry against super-injunctions came in 2009, when The Guardian newspaper was legally prohibited from reporting certain remarks made in the British parliament, prompting the government to express their concern about the over-use of super-injunctions and the manner in which the law was being enforced.
Injunction broken by Twitter
In 2011 super-injunctions once again became the focus of a heated debate on the future of media, when a British tabloid began printing speculative stories about scandals involving several celebrities, omitting any details that the press was prohibited from printing by an injunction. In May 2011 several entries appeared on the social networking site Twitter, naming the celebrities involved in said scandals, among them a married footballer accused of having an affair with a model.
Re-posted by thousands of Twitter users, the name of the footballer became public knowledge, but, paradoxically, still could not be reported by any traditional media in England and Wales. In reaction, a newspaper from Scotland, where the injunction order is not directly enforceable, ran the picture of the footballer on their cover, his eyes covered with a black bar, with the caption ‘Censorship’.
In spite of an outburst of public support demanding that the footballer be named and the UK governments’ unease with the super-injunctions, the British High Court ruled to retain the injunction in question. This prompted Member of Parliament John Hemming to invoke parliamentary privilege (where politicians under most circumstances cannot have civil or criminal proceedings brought against them for comments made within the scope of parliamentary business) and publicly name the footballer in parliament, stating that “With about 75,000 people having named [the footballer] on Twitter, it is obviously impracticable to imprison them all”. The traditional media could now report the footballers name for the first time.
Concerns about online censorship
In response to the super-injunction controversy, the British Government stated that it would look towards clearer guidelines for judges ruling on injunctions, so that they would not be forced to rely on European law alone.
A judicial committee report on super-injunctions, the so-called Neuberger report was prepared for the Parliament, providing several recommendations on how to implement super-injunctions in practice. The report, however, fails to mention the internet or new media, or how injunctions would be enforced against non-UK publishers and websites, with comments by the Lord Chief Justice that ways would nevertheless be found to prevent the “misuse of modern technology” raising concerns about online censorship.
