Limited information is available about privacy injunction hearings in British courts but sometimes the press cries 'super injunction' when it's simply not.
A super injunction is one whose very existence cannot be reported - as in the cases involving Trafigura (2009) and Terry (2010). As media lawyer Mark Thomson explained in a footnote on the Inforrm media law blog last year: "The 'super injunction' part of the order is the restraint on publication of the existence of the proceeding."
So the recent case of ZAM v CFW, despite media reports to the contrary, did not involve a super injunction - as freelance lawyer and former Guardian readers' editor Siobhain Butterworth confirms in an article here.
Instead, it was an order in which the names were anonymised - hence the mysterious ZAM and CFW - but the media could report that the injunction existed and the judgment was publicly available online.
Interestingly, it was a libel, not a privacy, case. The anonymous claimant applied for an interim injunction in libel and under the Protection from Harassment Act 1997 to prevent the publication of statements about the claimant's management of family trust funds.
Twelve months ago, the Master of the Rolls, Lord Neuberger, formed a committee of media lawyers and judges to "examine the issues around the use of injunctions which bind the press and so-called 'super-injunctions'". It is due to report by the end of April.
In the meantime, in collaboration with the Inforrm blog, I have attempted to collect as much information as possible about anonymous privacy injunctions between January and March 2011.
Contrary to what you might expect, it appears that there are very few privacy injunctions against the media directly. The public judgments suggest that the injunctions are often against blackmailers, and it is rarely contended that there is a public interest in the publication of the information.
It seems likely that all, or almost all, of these privacy hearings involve injunctions and will, in part, cover the prevention of publication of information - although those against individuals may also cover matters such as harassment.
There appear to have been 11 privacy injunction hearings in the first three months of 2011, seven of which resulted in 'public' - although not always 'published' - judgments and two in which judgment is awaited. (Public judgments can be inspected at the courts but are not always published online on the Bailii website.)
There were two injunctions granted against media defendants.
None of these injunctions are 'super' in nature: so the existence of the injunction can be reported, although in most cases the names of the defendants and claimants cannot.
Of these 11 cases, two were defended by a newspaper group and eight hearings involved individual defendants - some of whom had threatened to provide information to the media. (The other case had an unknown defendant.) As far as I am aware, none of the orders made was challenged by media organisations on public interest or other grounds.
I'm also trying to find out how news organisations have been affected by these privacy injunction orders even if they were not the defendant themselves. So far, I can report that the director of editorial legal services at Guardian News and Media, Gillian Phillips, has received three anonymised privacy injunctions between 1 January and 31 March 2011 but no 'super' injunctions. And there were a number of court reporting restrictions in children and criminal cases, and an order from the Court of Appeal in an immigration case that prevents the newspaper naming the individual concerned.
So where does all that leave us? While journalists should continue to raise questions about 'super injunctions' and the use of anonymous injunctions restricting the media's ability to report court proceedings, there is a more pressing need for raw information direct from the courts. It is believed that a draft report has now been considered by members of Lord Neuberger's committee; ideally, it will make positive recommendations to improve the transparency of privacy injunction hearings and better inform the media debate.
You can read more details about the privacy hearings and injunctions researched by the author here.
Judith Townend is a freelance journalist and PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com and is @jtownend on Twitter.
