Heard of one of these yet? Every celeb with a salacious secret seems to have one, but what is a super-injunction? Well an injunction is a court order for someone to do, or not to do something. What makes it ‘super’ is when the court prohibits anyone divulging the existence of the injunction as such publication would defeat the whole point of the injunction. It makes sense – celebrity A seeks an injunction to prevent newspapers B printing a story about an illicit affair with sports person C. If the injunction were granted and prohibited merely the publication of the story but the media were able to report that A has prevented B from publishing a story about C, it wouldn’t be too difficult to hazzard a guess about what the story may have been about, putting 2 and 2 together often to get something near, but not quite,  4. The unfortunate result often is that the rumour mill of what the story was probably about can often spill out more damaging material than the actual facts themselves – never let facts get in the way of a good story after all.

So why have the media whipped up such a storm about the super-injunction? Is it because the media are the guardians of our morality and such a role is being suppressed by their inability to put such stories concerning public people into the public domain? Or is it because a super-injunction quells the publication of a sensational story about a household name, a missed opportunity for a headline-grabbing sales pusher? It is of course a battle between the competing interests of an individuals right to privacy and freedom of speech in relation to stories in the public interest.

The media’s condemnation of the perceived prevalence of super-injunctions coincides with Max Mosley’s charge to the European Court of Justice to seek a declaration that the press must notify subjects of a story before release, in effect tipping off individuals to allow them the opportunity of seeking an injunction prior to publication. This would lead to many more applications of this nature having the causal effect of the media being gagged in any circumstance where the story may infringe the subject’s right to privacy.

The battle between these competing interests however, appears to have been crashed by a third party – the invasion of media outside the jurisdiction of the UK and European Courts, which not only undermines the injunctions which are awarded to protect individuals but also facilitate the publication of stories upon which UK media are gagged.

Twitter, which has revolutionised the way news is reported, has revealed many of the subjects and case details, supposedly protected by injunctions. Twitter itself is based outside the jurisdiction of the British courts and it’s users are often anonymous. It is estimated that a list of celebrities who have recently obtained injunctions, posted on twitter, has been forwarded to over 2 million people! This does, to all ends, render super-injunctions meaningless.

This leaves the entire concept of the super-injunction in a bit of a mess, not only for the subjects of the story but for the media wishing to run the expose.

So where do we go from here? Expect super-injunctions to dominate the headlines for a while yet. David Cameron has acknowledged the need for parliamentary guidance which inevitably, will be followed by considerable debate but what is clear is that the law needs to catch up with technology.

If you have a query in relation to defamation law and reputation management, don’t hesitate to contact our sports and media lawyers.