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THE RISE AND FALL OF SUPER-INJUNCTIONS: PART I

   “Justice must not only be done but must also be seen to be done”.

Dictum by- Lord Hewart[1]

In this article, we will deal with an interesting remedy called Super-Injunctions. The Article will be posted in two parts. Part One would be dealing with the concept of super injunction and the origin of the same. Part Two will deal with the issues and conflicts surrounding it, the present situation, Indian position and Conclusion.

INTRODUCTION

People admire celebrities to the extent that they worship them as Gods. The practice of worshipping the rich, powerful and famous has been found to be deeply seated in majority of the population. These celebrities of any arena be it entertainment, politics, sports or business do take years in building reputation among the general public and the common people can make or break them.

Now, imagine as a celebrity you spent your entire life in guarding your reputation and one day a flashy breaking news on media about you shatters and tarnish your reputation completely which latter comes out to be utterly false. In such cases, the allegations and perceptions tends to stay in the minds of the general public even though the verdict was in your favor. So, what legal remedies can one take when the harm is already being done? Since no amount of damage claim or lawsuit on the media channels can bring back the lost reputation but it does not mean that media should resist itself from giving updates, some of which might even be in public interest. This complicated issue led to the rise of super- injunctions in UK in 2009-2011.

WHAT IS SUPER-INJUNCTION?

A Super-injunction is a court order according to which one cannot write about an issue nor can one mention the order preventing them from writing about the issue and if they do so it will be contempt of the court. These are the anonymity restraining/gagging orders which prevent the media from even saying that they are not allowed to make a report on the matter, as a consequence the general public does not even get to know about the occurrence of   the incident. It has only been the instrument of the rich and powerful because of high cost one has to pay to get them. Out of all the injunctions, super injunctions have been the most powerful one as there is not even a proper record about how many cases got super-injunctions, clearly as there has been absolute restriction on media and very few cases has been public like  the  recent PJS celebrity threesome case[2].

WHEN AND WHERE DID SUPER-INJUNCTION BEGIN?

While criticizing the Trafigura fiasco[3], as revealed by Minton report, that about 30,000 Africans were affected by the toxic effluents dumped by the multi- national company; Alan Rusbridger- the Guardian editor coined the term super-injunction in 2009.[4] In the mentioned case the company tried to persuade judges to keep the existence of court proceedings and court orders as secret and launched an action against the BBC as well. From the case of John Terry[5] wherein the then captain of English team who was accused of having an affair with teammate’s girlfriend in 2010, to case of Fred Godwin[6], the former chairman of the $40 billion banking group who was allegedly in a sexual relationship with his bank colleague in 2011, the super-injunctions have been the go-to-choice for the rich and the powerful to put chloroform on the faces of troublesome media and editors.

However, these anonymous gagging order/Super-injunctions had been there before getting a proper term name as ‘Super-injunction’. As, in 2001 Gary flitcroft[7] won injunction and spent about 200,000 Euros to prevent a weekly newspaper from publishing about his secret affair with a lap dancer and nursery nurse.  In 2003, Steve McManaman and Robbie Fowler[8], the Liverpool celebs tried to prohibit claims about their sexual life but did not won the injunction. Interestingly, there has also been a case where celebrity Andrew Marr was involved with female journalist, he used gagging order to hush up the media about his extra marital affair and surprisingly won the injunction in 2008. [9]


[1]The King v. Sussex Justices, [1924), 1 KB 256

[2] PJS v News Group Newspapers Ltd., [2016] UKSC 26

[3] Editorial, “How the Trafigura story unfolded” The Guardian, (October 13, 2009), available at: https://www.theguardian.com/world/2009/oct/13/how-trafigura-story-unfolded

[4] Editorial, “The Trafigura fiasco tears up textbooks” The Guardian, (October 14, 2009), available at: https://www.theguardian.com/commentisfree/libertycentral/2009/oct/14/trafigura-fiasco-tears-up-textbook

[5]Terry (previously LNS) v Persons Unknown: QBD 29 Jan 2010

[6]  Fred Goodwin v News Group Newspapers and VBN, [2011] EWHC 1437 (QB)

[7] A v B plc (Flitcroft v MGN Ltd.), [2002] 2 All ER 545

[8]  Editorial “Footballers who went to court to block love life claims” India Today ( April 16,2011)

[9] Editorial “Andrew Marr reveals he took out super injunction’’, The Guardian, (April 24, 2011).

Author: Ms. Swati Anand, NMIMS, Bangalore

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