The unfolding superinjunctions scandal in the United Kingdom is one of those legal stories that has gripped the media, broadsheet and tabloid alike. Much of the coverage now focuses on the fact that social media tends to make a superinjunction redundant.
An injunction is an equitable remedy and therefore a number of specific rules (maxims) apply when a judge considers whether to grant one. One such maxim is that equity will not act in vain. Mr. Justice Clarke summarised the position in a recent Irish case involving an attempt to force through the sale of a property where the purchasers had no ability to pay.
It has often been said that equity will not act in vain. A court should, therefore, be reluctant to make an equitable order where there is no reasonable prospect of the order concerned being complied with. I should add one qualification to that statement. There obviously may be cases where persons may simply decline to obey an order of the court. The fact that a party might be most unlikely to obey a court order could not, in my view, be a reason for the court not making the order in the first place. However, where it is clear on the evidence that a party would not, in fact, be able to comply with a court order, then a court should be most reluctant to make such an order.
For superinjunctions of the type currently in the news, there is no reasonable prospect of the orders being complied with. But this results from the fact that Twitter users, for example, are unlikely to obey the order, rather than being unable to obey it. Nevertheless, the issue of enforceability is significant. Proposals to impose editorial moderation on social media are somewhat silly and, as with many of the measures adopted to tackle illegal filesharing, doomed to fail.
As the Guardian commented in its editorial yesterday:
The case is, on the face of it, not a terribly attractive one for arguing either the cause of freedom of speech or for the supremacy of parliament.
However, the issue is not about the peccadilloes of a premiership footballer and the same principles will apply in far more serious circumstances.
What if some people on Twitter decided to name rape victims, or publish the current identity and whereabouts of Mary Bell, the child killer was who has, since 2003, been protected by a court order?
On the other hand, the existence of superinjunctions first came to public attention during the remarkable Trafigura affair in 2009 when the Guardian was prohibited from reporting on a question asked in the British Parliament. The case was something of a nightmare scenario for those with an interest in open democracy and press freedom.
The UK controversies inevitably involve debate on the merits of introducing a privacy law or reforming defamation law. What about this jurisdiction? Reforms have recently been made to our defamation law and while they were to be accompanied by a “deeply flawed” privacy law, that initiative has stalled.
The Privacy Bill 2006 proposed that a court could, in a privacy action, make an order prohibiting a defendant from doing anything that the court considers violate the privacy of the plaintiff. It also allowed for wide powers to control media reporting of privacy actions. It certainly appeared wide enough to allow for superinjunctions. Eoin O’Dell outlined the conundrum that the Bill would present the media with when coupled with the Defamation Act 2009.
[The Bill] has raised the spectre the defamation gagging writ of old simply being replaced by a shiny new privacy gagging writ. One aspect of the two Bills together puts journalists into a potentially invidious situation. To be able to rely on the defence of reasonable publication in a defamation action, one of the factors which the court will take into account is the extent to which a reasonable attempt was made by the journalist to obtain and publish a response from the person who is the subject of the article.
However, a journalist who makes such contacts in advance, now runs the risk of precipitating a privacy action from that person.
The journalist is now potentially damned by the Privacy Bill for contacting the subject of the article, and damned by the Defamation Bill for not doing so.
Of course, we don’t know if there are any superinjunctions in force in Ireland because, by their nature, the media is generally prohibited from reporting even their existence. Given that Ireland is such a small community, however, it seems probable that word of superinjunctions would quickly leak out. In addition, as noted by Flor McCarthy:
The constitutional requirement in this jurisdiction that justice must be administered in public would be a high hurdle for an applicant to overcome; though maybe we just don’t have the right celebrities!
Nevertheless, it is not inconceivable that such draconian injunctions could be issued in Ireland. After all, the ongoing banking crisis in Ireland has been accompanied by an astounding level of secrecy. The Credit Institutions (Stablisiation) Act 2010, a remarkable piece of legislation which should be far more controversial than it currently is, baldly provides:
The Court may order that any application under this Act, or any part of such an application, shall be heard otherwise than in public or may impose restrictions with regard to the disclosure in open court, publication or reporting of any material that might be commercially sensitive.
This is a very broad provision and was relied on almost immediately after the Act was passed. It was quite clear at the time this Act was first used that the parties hoped that the media would not be aware of the proceedings. Could a judge order that an article such as that in the Irish Times not be published on the grounds that the fact of the application itself was commercially sensitive?
There may well be grounds for the use of draconian court orders on occasion but it must be considered that the parties most likely to seek them are large corporations and wealthy individuals. As Mark Stephens, a high profile media lawyer, commented:
They are almost discriminatory justice. Not a single woman has taken out a super injunction and as a result of that, it is only the men. Invariably they are rich men because it costs between £50,000 and £100,000 (€56,000 and €113,000) to get a superinjunction.
A Clatter of the Law 
In regard to the prohibition of reporting by “The Guardian” of Parliament, this is “spin” by the newspaper and its editor. The media generally accepted the “spin” without question because it suited its purpose of subverting systematically all restraints on its abuse of power.
It is true that Trafigura’s solicitors suggested at the time that the injunction had that effect – and it’s an interesting question whether it did – but they did not pursue it.
Myself, I have little doubt that the Court, if asked, would have modified the order to clarify that it was not intended to “muzzle” reporting of what was said in Parliament.