"super-injunctions" – recent developments
On 1 August 2011 the Master of the Rolls Lord Neuberger
announced two developments in the area of "super-injunctions" in
response to the review of the law surrounding the area carried out
in May.
The first development was an introduction of a statistical
monitoring pilot scheme which will run from 1 August 2011 to 31
July 2012. Under the scheme the use and scope of privacy
injunctions will be formally monitored and published annually with
anonymised details about applications. The pilot scheme is aimed at
trying to ascertain the precise use and frequency of such
injunctions and what sort of information is being asked to be kept
confidential.
Lord Neuberger has also issued practice guidance on privacy
applications which include a model draft order. The guidance
emphasises that privacy injunctions should only be granted "when
they are strictly necessary to secure the proper administration of
justice" and that where the respondent, or a non-party involved in
the application, is a media organisation only rarely will it be
justified to not give the media organisation notice of the
application. He did however comment that different considerations
may arise where a respondent or non-party is an internet-based
organisation, tweeter or blogger, or where there are allegations of
blackmail.
Publishers should take note of these developments as it
illustrates the judiciary's view of only allowing applications for
"super-injunctions" when absolutely necessary and also a
presumption that prior notification of the application to the
respondent and non-parties is required, especially when a media
organisation is involved. The data monitoring scheme is also of
note as it will allow publishers and the media to as good a picture
as possible as to the use and frequency of super-injunctions
without breaching such injunctions. All of this hopefully
illustrates a commitment to preserving the free speech of
publishers and limiting any restrictions to the minimum necessary
for the proper administration of justice.
