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Section numbers from the book are used where relevant. The book should be read. Its content provides fuller explanations and context.
‘Super-injunctions’ controversy and examples
of injunctions over relationships
The issue of injunctions and so-called super-injunctions—orders which include a clause banning publication of the fact that they have been made— attracted considerable media coverage in April and May 2011 amid concerns that the orders were irrevocably damaging freedom of expression, including that of the media, and the public’s right to receive information, as a number of high-profile figures including footballers, actors and business people facing allegations—for example, of adultery—obtained anonymised injunctions giving them anonymity in these cases, to block publication of information about their private lives, while bloggers and Twitter users sought to undermine orders by naming—sometimes incorrectly—those they claimed had obtained them. Many of the cases in which celebrities and others were said to have obtained a ‘super-injunction’ were in fact simply anonymised injunctions. The case of footballer John Terry (see case study below) was notable because his lawyers applied for an urgent, anonymised injunction without notice to any media organisations (though The News of the World was named in evidence) and with a provision in the draft order before the court that ‘reports of the fact of the injunction’ should be prohibited (i.e. a super-injunction – however it was accepted by Terry’s lawyers at the hearing that such a provision was not necessary). The extensive coverage led the then Master of the Rolls, Lord Neuberger, to issue useful Practice Guidance in a report including guidance on injunctions following a review, in which he said there had only been three other instances of super-injunctions since the John Terry case. See Useful Websites at the end of this Additional Material for the report.
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Case study: In January 2010, then Chelsea and England captain John Terry sought to block publication of information revealing he had an affair with the former girlfriend of his England teammate, Wayne Bridge. Terry’s lawyers applied for what was referred to as a ‘super injunction’ on account of a provision sought in the draft order on January 22 to block reporting of the alleged affair by the press – although no media organisation was named as a party, The News of the World was named in the evidence before the court. Mr Justice Tugendhat heard the injunction application on that date, and delivered a ruling a week later on January 29, declining to make any injunction. The judge said he was ‘not satisfied’ Terry was likely to establish that publication should not be allowed. He also said that, when he queried it, Terry’s lawyers ‘accepted that it was not necessary’ to prohibit reports of the fact of the injunction (John Terry (previously referred to as ‘LNS’) v Persons Unknown [2010] EWHC 119 (QB)).
Case study: In April 2011, then Manchester United star Ryan Giggs was granted a temporary injunction, extended later the same month, by Mr Justice Eady to prevent details of an alleged extra-marital relationship between Giggs and former Big Brother contestant Imogen Thomas from being published in The Sun. However, the injunction did not serve its intended purpose as Giggs was identified on social media as the footballer involved, prompting widespread discussion as to how court injunctions could be enforced in relation to social media. Eady J rejected an application the following month by the publisher of The Sun to lift the injunction, but Liberal Democrat MP John Hemming then used parliamentary privilege to identify him as the footballer with the injunction (CTB v News Group Newspapers & anr [2011] EWHC 1232 (QB)). Giggs later settled his privacy claim against Ms Thomas, after she and The Sun stated, and he accepted, that she was not the source of the article. He tried to continue his claim against The Sun, but it was struck out after he failed to meet a court deadline and Mr Justice Tugendhat refused to reinstate it. In the judgment dealing with that application, Tugendhat J observed: ‘There can be few people in England and Wales who have not heard of this litigation. The initials CTB have been chanted at football matches when Mr Giggs has been playing for Manchester United. And Mr Giggs has been named in Parliament, raising questions as to the proper relationship between Parliament and the judiciary.’ (Giggs v News Group Newspapers [2012] EWHC 431 (QB)).
‘Right to be forgotten’ case study –
further detail
In 2018 in the first ‘right to be forgotten’ case in the UK, two men sued Google in the High Court. Each was given anonymity in respect of the proceedings—being referred to as NT1 and NT2. Each claimed that their rights in privacy and data protection law required Google to remove from the results of searches of their names any reference to crime each had committed and jail terms they had served. Google had refused their requests to do this. Such searches could find media reports of NT1’s conviction in the 1990s for a criminal conspiracy of false accounting in property business activities, a charge he had denied; and of NT2’s convictions from more than 10 years before 2018. Both men’s convictions are ‘spent’ under the Rehabilitation of Offenders Act 1974. NT2’s convictions arose from his work in a business that was the subject of public opposition over its environmental practices. Each claimed that their rights in privacy and data protection law required Google to remove from the results of searches of their names any reference to the relevant reports of these court proceedings and of the jail term imposed in each case. The judge said that information about NT2 ‘has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability’. He added that NT2 had frankly acknowledged his guilt, and expressed genuine remorse, and there was no evidence he would reoffend. The judge, upholding NT2's claim, said he had a reasonable expectation of privacy as regards those past matters, and so his Article 8 rights were now engaged in respect of Google searches, including to protect his young family from such publicity. NT1 lost his claim—the judge said NT1 was a public figure, and although his role had changed, the information he wanted delisted was not private but was about business crime, its prosecution, and its punishment, and essentially public in character. (NT1 and NT2 v Google LLC and the Information Commissioner [2018] EWHC 799 (QB)). In December 2018, on the eve of an appeal brought by NT1, Google settled his claim. Although the right to be forgotten is not thought to have led to material being compulsorily removed from individual websites, such as newspapers’ online archives, the restriction it imposes on search engines makes the information much harder to find. Google, when requested, has voluntarily delisted search results in many instances but—using considered criteria to make such decisions—not in all.
The ‘right to be forgotten’ established in this case has since been superseded by a ‘right to erasure’ available in the General Data Protection Regulations (GDPR) – See McNae’s ch.28 for more on Data Protection rules.
Useful Websites
https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/super-injunction-report-20052011.pdf.
Report by Lord Neuberger on super injunctions