SUPER-INJUNCTIONS

John Terry and the Super-Injunction that was wide of the mark.

Have super-injunctions been shown the red card by Mr Justice Tugendhat? If you are the kind of person who likes their legal analysis concise and straightforward, you need read no further, the answer is no. They are extremely likely to remain in play however the courts appear to have reined them in somewhat.

But what is a super-injunction?

It is a double gagging order which prevents (1) the publication of a press article as well as (2) even mentioning that a judge prevented it from being published in the first place.

What happened at John Terry's hearing?

Initially the court granted a temporary super-injunction however the Judge later decided that it was "not necessary or proportionate having regard to the level of gravity of interference with the private life of the applicant" adding that "the nub of the applicant's complaint is to protect his reputation, in particular with sponsors".

John Terry's solicitors applied for this super injunction under Article 8 of the European Convention of Human Rights, the right to respect his private and family life as well as his home and correspondence. However, Terry's arguments were in Mr Justice Tugendhat's view more geared around protecting sponsorship deals.

This argument sat uncomfortably beside his right to privacy. His arguments might have been more convincing had they focussed on the effect these articles would have had on his family and children. A lost sponsorship deal can after all be compensated with a damages award; hurt feelings and distress are an altogether more difficult proposition.

The Judge lifted the ban however he left the door open for Terry to sue for breach of privacy at a later date.

Overall, the Terry case represents common sense on the part of the Judiciary. A persons' right to privacy, when their prime motive is to protect sponsorship deals, should not beat the press' freedom of speech.

The debate

Certain newspapers have been hailing this outcome as a victory for the press and freedom of speech. It is fair to say that over the last few years the privacy courts have interpreted the right to privacy relatively strictly against newspapers. However there appears to have been a slight shift in the court's attitude of late.

Several months prior to the Terry case, the Trafigura case also raised eyebrows. In this case ‘the Guardian' obtained secret documents about Trafigura, a multinational shipping company. These confidential documents revealed that they were responsible for dumping toxic waste off the Ivory Coast. A super-injunction was initially obtained banning any reference to these documents as well as the fact that the gagging order had even been obtained. However, it was lifted shortly after an MP tabled a question in the House of Commons referring to this incident and the super-injunction obtained by Trafigura. All MPs' questions are published on Parliament's website and this story soon leaked onto the internet and became one of Twitter's main stories. The super-injunction obtained by Trafigura had therefore been thwarted.

So where does this leave the super-injunction?

Privacy will remain very much a hot topic in the courts and super-injunctions, when deemed absolutely necessary, will still be granted. The rules in the litigation game and the court's attitude may have shifted slightly however the law remains the same.

For advice on libel issues or for general litigation advice please contact Adam Roberson or Nick Goldstone in the Dispute Resolution Department. Tel: 020 7495 30003