Use of Super injunctions

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Created: Friday, July 08 2011 13:50

Super injunctions are a lot less common than the intense media coverage surrounding the issue would suggest.

In the first instance, an injunction is a remedy awarded by a Court to protect a legal right and to prevent a breach of that legal right.

Injunctions are useful in situations where there is an urgent need to prevent a breach of your legal rights. The rationale for injunctions is that to permit the breach of your legal rights would do irreparable damage to you, and therefore the breach must be prevented before it happens.

Injunctions are generally granted on an “interim” or interlocutory” basis, which means that the injunction is granted at an early stage in legal proceedings in order to safeguard the legal position until the Court hears the full case.

A super injunction is as an interim injunction which restrains a person or media organisation from (i) publishing information which concerns the applicant and which is said to be confidential or private and (ii) publicising or informing others of the existence of the order and the proceedings.

In addition to preventing the disclosure of information regarding the applicant, a super injunction also prohibits disclosure of the very existence of the injunction being reported in the press and the names of either or both of the parties to the proceedings.

A number of super injunctions have been granted by Courts in the UK, but only for very short periods and where the level of secrecy was deemed necessary to ensure that the whole point of the order was not destroyed.

The legal basis for granting a super injunction follows an assessment of the applicant’s right to respect for his private and family life under Article 8 of the European Convention on Human Rights, and the right of news organisations and other individuals to impart information under Article 10 of the Convention.

In the case of super injunctions, the deciding legal factor appears to have been that “tawdry allegations about an individual’s private life” are not afforded the same significant as more serious journalism.

Could a super injunction be obtained in Ireland? It is possible, though only in very exceptional circumstances.

Given the intense media scrutiny surrounding any super injunction, individuals will decide that they are more trouble than they are worth. The ease with which information can be circulated on various forms of social media means that super injunctions will remain almost impossible to enforce.