The injunction is dead... long live the super-injunction
Lawyer warns that attention generated by the threesome injunction - and the subsequent naming of the celebrity abroad - may bring back the super-injunction
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Your support makes all the difference.The furore created over the “celebrity threesome” injunction may have an unintended consequence – even greater privacy for public figures who don't want their dirty laundry aired in public.
A leading media lawyer has said celebrities could decide to once again turn to the even more restrictive “super-injunction” after seeing the global attention sparked by the anonymised injunction attempted by the celebrity involved in the threesome.
The comments come as judges ruled the injunction naming the celebrity identified in legal papers as "PJS" said to have engaged in "extramarital affairs" can be lifted - the man involved can not be named as he is expected to ask for a stay pending further legal action.
Despite this, the widespread reporting of the injunction’s existence outside of England and Wales has already led to the celebrity being named by overseas newspapers and websites.
Regardless of whether or not the current injunction is lifted, the lawyer suggested, courts and celebrities may once again see a need for super-injunctions – even though they fell out of favour in 2011 after footballer Ryan Giggs succeeded only in further publicising the affair he had with his brother Rhodri’s wife, Natasha, and former Big Brother contestant Imogen Thomas.
Unlike anonymised injunctions, the lawyer explained, super-injunctions forbid even reports of their existence, meaning they could theoretically stop newspapers “piquing everyone’s interest about them” and thus reduce the risk of people subsequently naming names online.
The lawyer, who wished to remain anonymous, told The Independent: “The problem with an anonymised injunction is you can publish the fact of it, which just piques everyone’s interest.
“The media have been pretty outrageous and very clever. There has been a lot of egging on, stirring others up to name this person, so they can say ‘oh look, it’s all in the public domain anyway.’ It just rides roughshod over the whole court process.
“So does this actually mean there is a case for the reintroduction of the super-injunction? Should they be reintroducing super-injunctions so the press can’t even report on the fact that an injunction has been granted?”
If super-injunctions did return, it would be a spectacular revival for legal devices considered ‘dead in the water’ after a rash of failed attempts by celebrities to use them.
Footballer John Terry’s attempt to prevent reports of his affair with Vanessa Perroncel, the ex-girlfriend of his team-mate Wayne Bridge ended in heavily publicised failure when the judge lifted the super-injunction in January 2010.
Former Top Gear presenter Jeremy Clarkson had a super-injunction in place for a year to prevent his ex-wife writing about his personal life but in October 2011 he applied to the High Court to have it lifted, telling The Independent: “Injunctions don't work, they're completely pointless and unbelievably expensive.”
This seemed to have been proved – spectacularly – by the Ryan Giggs case. After the Sun reported on the case without identifying him, the footballer was named in the foreign press and on Twitter, which is based in California.
Mr Giggs eventually gave up all rights to anonymity in relation to the case in February 2012, but by that time what might have been an embarrassing but one-off tabloid story had received global publicity.
A further blow to super-injunctions was struck in 2011 when the Committee on Super-Injunctions, headed by Master of the Rolls Lord Neuberger, reported they were being overused, making judges far more reluctant to grant them.
With memories of the Giggs case fading, however, some lawyers have seen a recent resurgence of interest in privacy injunctions, especially as the initial imposition of the gagging order in the current case suggested courts were taking a more liberal line in defining misconduct in public figures’ private lives.
Ahead of the final ruling on the threesome case, Sara Mansoori, of Matrix Chambers, told the Telegraph that the initial decision had been “likely to be assist claimants – particularly high-profile individuals – who are seeking to prevent newspapers publishing details about their private lives.
“This case demonstrates that the courts are willing to take a liberal view of how an individual chooses to conduct his or her private sexual life.”
Niri Shan, the head of media law at Taylor Wessing, said he had recently been receiving one enquiry every three months about anonymised injunctions – (but not super-injunctions).
“From rich to poor, from celebrities to business people, it can be anyone,” he said.
He admitted, however, that the furore generated by the current case would put people off applying for anonymised injunctions because “You would need to advise someone that even if they got the injunction there are a number of ways – overseas publications, social media – that the information could come out and you could generate more publicity around the original allegation.”
He added that slightly lower profile individuals might still think it worth trying, but an anonymised injunction wouldn’t work for the really famous.
“If it is a big A-list celebrity with an international reputation, I think it’s pretty inevitable it’s going to come out through overseas publications or social media.”