The Committee on Super-Injunctions was established in April 2010 to "examine well-publicised issues of concern to Parliament, the judiciary, the media, and the wider public", following RJW & SJW v The Guardian newspaper & Person or Persons Unknown (Claim no. HQ09) and Terry v Persons Unknown [2010] 1 FCR 659, in particular the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. Concerns had been raised with the British Parliament's Culture, Media & Sport Select Committee on Press Standards, Privacy & Libel and by the Lord Chancellor and Ministry of Justice officials with the senior judiciary.
The Committee's terms of reference were:
• To examine issues of practice and procedure concerning the use of interim injunctions, including super-injunctions and anonymised proceedings, and their impact on the principles of open justice bearing in mind section 12 of the Human Rights Act 1998;The Committee's 112 page report makes recommendations on -
• To provide a clear definition of the term super-injunction; and
• Where appropriate, to make proposals for reform, and particularly to make recommendations for any changes to the Civil Procedure Rules and Practice Directions.
• The practice and procedure governing interim injunctions which restrict freedom of speech, including super-injunctions and anonymised injunctions;Key findings in the report [PDF] are -
• The use of specialist judges to determine applications for super-injunctions;
• Super-injunctions and the reporting of Parliamentary proceedings;
• The collection of data about super-injunctions, and anonymised injunctions, and the communication of information concerning the same to Parliament and the public.
Open justice is, and has long been, a fundamental constitutional principle. It requires that all aspects of court proceedings should be open to, and freely discussed by, the public, and in particular, the media, and only permits oflimited exceptions, either those which are created by statute, or those which involve judicial discretion, to the extent that they are strictly necessary in the interests of justice.
Although confidential information has long been protected, a general right to respect for privacy was not recognised until 2000. Concerns have been expressed in some quarters about the way in which the law of privacy and confidentiality has developed since the introduction of the Human Rights Act 1998, particularly in interim injunction cases, given Parliament’s intention in passing section 12 of that Act, which was particularly concerned with maintaining a balance between privacy and freedom of expression. These concerns must be addressed either on a case-by-case basis by the courts or, at a more general level by Parliament.
A super-injunction is an interim injunction which restrains a person from:(i) publishing information which concerns the applicant and is said to be confidential or private; and,An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.
(ii) publicising or informing others of the existence of the order and the proceedings.
There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.
There has also been an increase in the number of cases which are anonymised. The law on anonymisation has been clarified in two recent Court of Appeal decisions. Confusion has arisen as many cases with privacy or anonymity aspects have been wrongly labelled as super-injunctions.
When anonymised orders are made, the court has and should wherever practicable provide a reasoned judgment for its decision.
The Committee has produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.
The Committee does not consider specific guidance on expedited appeals is necessary as such guidance already exists. It should however be revised and updated. It also recommends that training for judges who hear applications for injunctions which may impact on the principles of freedom of expression should continue.
The Ministry of Justice, with the assistance of HMCTS, should collect data about super-injunctions and anonymised injunctions, in relation to all privacy orders which derogate from the principles of freedom of expression.It is anticipated that the Ministry will implement this recommendation as soon as practicable.
The court has never asserted, and could not properly assert, power or authority to restrict Parliamentary debate or proceedings. The relationship between Parliament and the courts is predicated on mutual respect and confidence. The chapters in the Report which address questions relating to Parliamentary privilege and process have been disclosed to the Speaker of the House of Commons and to the Lord Speaker in the House of Lords. It is intended that any issues arising in the context of claims for injunctive relief on the basis of privacy will be discussed further with them,
Media reporting of what was said in Parliament is only protected if it is a summary of Hansard published in good faith. The extent, if any, to which other media reports of Parliamentary proceedings in breach of a court order would be protected is unclear.
