When the press (or any individual) threatens to run an unfavorable story, an injunction is one of the most powerful tools at a company or public figure’s disposal. With an injunction, proprietary or potentially damaging information can be kept out of the public sphere until such time, if ever, it is appropriate for it to be released. At most, the press can mention that there is information it is prohibited from distributing.
In the United Kingdom, the protective umbrella of an injunction can be opened even wider. A super-injunction, not available in the U.S., prohibits disclosure not only of the protected information, but of the existence of the injunction itself.
“It’s a complete clean slate in silence about the whole issue, so the public can hear nothing about it,” says John Linneker, a partner in the London office at SNR Denton.
Such protection is understandably appealing, especially for those with high profiles and valuable reputations.
“In Europe there’s a general right to privacy,” explains Harry Small, a partner in Baker & McKenzie’s London office. “You have a right not to have the details of your private life made public, even if they’re true. And sometimes the report of the injunction can be nearly as damaging as the information itself.”
But even the super-injunction isn’t bulletproof. In recent years, opponents of the super-secret orders have found ways to breach them. The largest chink in the super-junction’s armor comes from a longstanding tradition of parliamentary privilege, which allows members of Parliament (MPs) to speak freely during parliamentary proceedings. For those not protected by privilege, diligent research and the seeming anonymity of Twitter have made for an attractive alternative to disseminating the information.
By their very nature, super-injunctions should receive no attention. However, recent events have brought focus to them in the U.K., where soccer player Ryan Giggs’ breached super-injunction has received substantial media attention. In that case, the court granted the football star the injunction. (see “Giggs Up”).
In Europe, the European Convention on Human Rights guarantees conflicting rights to privacy and free speech, which judges must try to balance in requests such as these.
“In the cases of super-injunctions, [rights to privacy and free speech] are diametrically opposed to each other,” Linneker says. The judge has to balance the two. So in the Giggs case he thought that free speech wasn’t really served by allowing the newspaper to run the story. If it were someone like the prime minister, then the right to his privacy would not succeed because the right to free speech would take dominance.”
Despite the effort on the part of judges to balance privacy and free speech, many in the U.K. believe super-injunctions offer too much protection and have taken steps to fight back.
In 2009, oil trading company Trafigura obtained a super-injunction to quash stories of an internal report that had been leaked to newspapers about the effects of its waste-dumping in west Africa. The report contained damaging details about what had happened to people poisoned by the waste. The injunction was effectively voided when an MP raised the issue in Parliament. Because reporters are permitted to print anything MPs say or do in carrying out parliamentary duties, the story was outed and quickly went viral via Twitter.
“There are two things [to take away from the Trafigura case],” Small says. “First, consider the PR effects because if at any stage the injunction gets lifted or if the story runs anywhere outside of the British court’s jurisdiction, such as the U.S., it will be damaging. I’m sure Trafigura suffered far worse PR for pursuing such a strict injunction and having it lifted than they would have if they had simply let the story into the press. But second, if you have done things that are genuinely confidential, do not be afraid to use the courts to protect it.”
Although MPs can disclose information in Parliament without repercussion, the same is not true for those who take to Twitter with a story before it’s been disclosed legally. In the Giggs case, for example, while MP John Hemming eventually used privilege to disclose Giggs’ name in relation to the injunction, Twitter users who spread the information while the injunction was in place could face charges and fines—at least if they reside in the U.K.
Linneker says one of the limitations of super-injunctions is their reach; in a world with global communication, they offer little protection against disclosures made by individuals outside of the English courts’ jurisdiction.
In the case of Twitter, which is based in California, the British courts have little authority to take action against the company itself or its users unless Twitter cooperates with requests for disclosure, which it has in some instances, Linneker says.
“Twitter has disclosed [this kind of]information because it probably wouldn’t have looked very good for Twitter to make it difficult for an English court to enforce any kind of order,” Linneker says. “It doesn’t look good for a large sort of multinational company to be flouting legal rules in one of its main markets. They wouldn’t have liked to have had that bad publicity.”
Once Twitter—or any similar company—discloses the requested information (in this case, real names and locations of Twitter users who breached super-injunctions), authorities in the U.K. are able to move forward with contempt of court proceedings. For companies and individuals interested in disclosing protected information, it’s important to be sure to understand jurisdictional reach before posting. A company with holdings in the U.K. could face repercussions, even if its main business operations are based elsewhere, for example.
“The repercussions are quite serious, but that would be difficult if everyone’s in California,” Linneker says. “But if Twitter had a branch office in the U.K. and they were found to have deliberately breached a super-injunction, then that would be very serious for them.”
The opinion is split as to how much the U.S. courts might cooperate with super-injunction proceedings. While Linneker points to past instances of cooperation, Small is not convinced that the U.S. courts will ever back super-injunctions on principle.
“The English courts can grant an injunction against Twitter until they’re blue in the face, but how that’s going to be enforced in the U.S. I do not know, especially when there’s a feeling that U.K. laws of libel go too far,” he says.