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Enforcing gag orders in the Internet age

By Ryder Gilliland and Erin Hoult

March 26 2010 issue

A secret hearing — sometimes without notice — is held at the request of an anonymous applicant. A court file is sealed. An order issues banning publication of certain information — including the existence of the injunction itself. These interim injunctions — dubbed “super-injunctions” by the British media, which seems to be increasingly served with them — may be on the wane.

By their very nature, super-injunctions are not meant to come to the attention of the public. The orders prohibit reporting even the fact that an injunction restraining publication was sought. However, two recent English cases have exposed such injunctions to public scrutiny. Such scrutiny may be precisely what is called for to make such motions a thing of the past.

The most recent super-injunction to capture public attention came when premier league football star John Terry (and former English national team captain), sought and was denied a super-injunction on Jan. 29. Terry was trying to prevent reports that he, a married father, had been romantically involved with the girlfriend of one of his teammates.

Terry brought an application as “LNS,” without notice, for an injunction restraining publication of any information relating to the alleged relationship by any third parties. At that time, rumours were already circulating about Terry’s private life in the football community. In support of his application, Terry argued that he had causes of action in two burgeoning privacy torts in the U.K.: breach of confidence and misuse of private information.

The English court dismissed the application, finding that the evidence did not rise to the level required to demonstrate that Terry was “likely to establish” either of the proposed torts. After discussing the still developing law on the relationship between the law of defamation and the tort of misuse of private information, the court concluded that Terry’s claim was more about reputation than privacy (the evidence referred to concerns about Terry’s sponsorship deals).

In light of its conclusion that the action was more properly grounded in defamation, which has a more stringent test for interim injunctions banning publication than privacy-based claims, the court denied the injunction. The court also expressed concern that “claimants’ advisers have come under the impression that extensive derogations from open justice should be routine in claims for misuse of private information.” The court was also critical of Terry’s failure to bring the application on notice to at least one media outlet that he was aware had an interest in reporting on the alleged affair.

Because the super-injunction was denied, the fact (it now seems undisputed) of Terry’s affair was widely reported. The publicity cost Terry the captaincy of the English national soccer team.

A few months prior, another case had focused the spotlight on super-injunctions. On Sept. 11, 2009, oil trading giant Trafigura obtained a super-injunction against the Guardian newspaper and “persons unknown.” The injunction prohibited the Guardian and anyone having notice of the order from reporting on the contents of a leaked expert report commissioned by Trafigura on alleged dumping of toxic waste in the Ivory Coast (the “Minton report”). Nothing might have ever been known about the injunction but for the fact that a month later a member of parliament (himself a former journalist) asked a question of the Secretary of State for Justice regarding the Trafigura super-injunction and the effect of such injunctions on whistleblowers and press freedom.

Trafigura took the position that the Guardian could not report on the member of parliament’s question as to do so would reveal the existence of the super-injunction (and its subject matter) in breach of the court’s order. The Guardian reported it was prohibited from reporting on the proceedings of parliament. This in turn led to a mass of blogs and “tweets” that drew attention to the gag-order and reported the question that had been raised in parliament.

It is an example of the Internet doing what the mainstream media could not. The Minton report was available online, including on the Wikileaks website, before the injunction was abandoned by Trafigura. The social uproar over the Internet led to a debate in the legislature about the appropriateness of super-injunctions in general and their relation to parliamentary privilege, criticism of both Trafigura and its lawyers for what was seen as an attempt to interfere with parliamentary privilege, and ultimately the abandonment of the super-injunction by Trafigura.

The decision in the Terry case, perhaps prompted in part by the outcry over the Trafigura super-injunction, suggests that such injunctions may be losing favour in England. Fortunately it appears the super-injunction has never gained a foothold in Canada, although they could be granted routinely without most of us being any wiser. The English experience illustrates both the difficulty in enforcing gag orders in the Internet age and the general disdain the public has toward secret proceedings.

Ryder Gilliland and Erin Hoult are members of the Media group in the Litigation & Dispute Resolution department at Blake, Cassels & Graydon LLP in Toronto.

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