Super Injunctions: Legal Operation and Impact

Introduction

A super injunction is a form of court order that stops publication of specified information and also bars reporting of the order’s existence. It goes further than a standard interim non-disclosure order, which restrains publication but can usually be reported as being in place. Because super injunctions restrict open reporting about court proceedings, judges apply tough tests before granting them and often look for narrower alternatives.

In England and Wales, these orders sit at the junction of privacy, confidentiality, defamation risk, and the principle of open justice. Applications often arise from threatened publication of private information or trade secrets. The court must weigh privacy rights against freedom of expression and the public’s interest in knowing the facts, and any order must be no wider than necessary and limited in time.

What You’ll Learn

• What a super injunction is and how it differs from other privacy and confidentiality orders
• When the court will consider secrecy about the order’s existence
• How Articles 8 and 10 ECHR and section 12 of the Human Rights Act 1998 are applied
• The role of open justice, anonymity, and reporting restrictions
• The procedure: evidence, without-notice applications, return dates, and full and frank disclosure
• Practical drafting points, service on the media via the Press Association, and enforcement
• Common pitfalls, media leaks, and how courts deal with “jigsaw” identification
• Key cases including Trafigura, CTB, PJS, and Terry v Persons Unknown

Core Concepts

What is a super injunction and how is it different?

• Standard interim non-disclosure order (INDO): restrains publication of specified information. The existence of the proceedings and order can usually be reported.
• Anonymity order: parties and/or non-parties are anonymised to reduce identification risks (for example, ABC v DEF). The order may still be publicly known.
• Reporting restriction: limits what may be reported about proceedings (for example, postponement of publication).
• Super injunction: restrains publication of information and prohibits reporting that an order or proceedings exist. Because this curtails open justice, the court will usually consider whether an INDO plus anonymity and narrow reporting restrictions will suffice before going that far.

In practice, judges are cautious about super injunctions. If transparency can be preserved through anonymisation and carefully drawn reporting limits, that is preferred.

Legal tests: Articles 8 and 10, section 12 HRA, and open justice

• Articles 8 and 10 ECHR: the right to respect for private life and the right to freedom of expression are both engaged. Following Re S (A Child) [2004] UKHL 47:
  • Neither right has automatic precedence;
  • Each is given intense focus on the facts;
  • Proportionality is the ultimate test.
• Section 12 HRA 1998: for interim relief affecting publication, the court must be satisfied it is likely the claimant will establish at trial that publication should not be allowed. The court must also have special regard to freedom of expression and the public interest in reporting.
• Open justice: courts sit in public by default. Private hearings, anonymity, and reporting restrictions are permitted only where strictly necessary (see CPR r.39.2). If a super injunction is granted, reasons are commonly provided in a public judgment as soon as that can be done without frustrating the order.

The court also asks whether lesser measures would achieve the same protection: narrower terms, delayed publication, redactions, or confidentiality clubs. Super injunctions are a last resort.

Scope, limits, and who is bound

• Precise terms: an order must clearly describe what is prohibited and for how long. Overbroad or vague wording is discouraged.
• Time limits: interim orders are usually short and reviewed on a prompt return date. Continuing secrecy must be justified.
• Persons unknown: orders can be made against unknown wrongdoers (for example, leakers) where the class is clearly defined and service is feasible.
• Third parties: a person with notice of the order who aids publication can be in contempt (the Spycatcher principle).
• Social media leakage: the fact information exists online does not make an injunction pointless. The court can restrain further intrusion and republication (PJS v News Group Newspapers [2016] UKSC 26).

Key Examples or Case Studies

Trafigura v Guardian News and Media Ltd [2009] EWCA Civ 408

• Context: An order was granted to restrain reporting about alleged toxic waste dumping and, at one stage, to restrict reporting of the order itself.
• Decision: The Court of Appeal adjusted the terms, allowing significant reporting. Public interest in parliamentary proceedings and transparency carried weight.
• Takeaway: Super injunctions face careful scrutiny. Open justice and public interest can narrow or defeat secrecy about the existence of proceedings.

CTB v News Group Newspapers Ltd [2011] EWHC 1232 (QB)

• Context: A well-known footballer obtained an order to restrain publication of private relationship details and sought secrecy about the order.
• Decision: The order was granted on privacy grounds, but widespread social media speculation created practical challenges. The court maintained the order for a period, focusing on the continuing intrusions that would follow new publication by mainstream media.
• Takeaway: Online gossip does not give the press a free pass. Courts focus on further harm from credible, widespread print and broadcast coverage.

PJS v News Group Newspapers [2016] UKSC 26

• Context: A celebrity sought to restrain publication of private life material despite extensive online rumours abroad.
• Decision: The Supreme Court continued the privacy injunction. Further publication by UK media would cause serious intrusion and harm to family life.
• Takeaway: The court can prevent additional harm even where some details are already online, especially to protect children and private family life.

Terry (previously LNS) v Persons Unknown [2010] EWHC 119 (QB)

• Context: An application aimed to restrain publication of a footballer’s alleged relationship and sought secrecy about the proceedings.
• Decision: The court refused an injunction. The real aim was said to be the protection of reputation rather than privacy or confidentiality, and the evidence did not justify restraint.
• Takeaway: The court expects clear, credible evidence of a genuine privacy or confidentiality claim. Badging a reputation concern as privacy will not succeed.

Practical Applications

• Evidence and merits

  • Prepare detailed evidence explaining why publication would be unlawful (misuse of private information, breach of confidence, or breach of contract) and the harm that will follow.
  • Address the section 12 HRA “likely to succeed at trial” threshold.
  • Anticipate Article 10 arguments: public interest, contribution to a debate of general importance, and whether a less intrusive measure is enough.

• Full and frank disclosure

  • Without-notice applications require disclosure of all relevant facts, including points unhelpful to the claimant and any contacts with the proposed publisher.
  • Failure can lead to discharge of the order and costs penalties.

• Drafting the order

  • Keep terms precise and targeted: define the information, prohibit solicitation of information if necessary, and include a clear duration.
  • Consider alternatives to a super injunction: anonymisation, a reporting restriction limited to sensitive details, or a confidential schedule.
  • Include a penal notice and provisions for a prompt return date.
  • Build in a short-form public judgment or press summary if possible, consistent with the Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003.

• Open justice and media notification

  • Give notice to the Press Association’s Injunctions Alert Service (or explain why not feasible). This helps ensure the media can attend the return date and reduces accidental breaches.
  • Ask for a private hearing only to the extent required (for example, to receive confidential exhibits), with a plan for a public judgment later.

• Service and enforcement

  • Serve the order and supporting materials promptly, including on “persons unknown” by permitted alternative means (email, platform messaging, or posting on a website).
  • Send take-down requests to platforms with a copy of the order.
  • Monitor compliance and keep a record of breaches for possible contempt proceedings.

• Managing “jigsaw” identification

  • Redact names, dates, and unique details that could identify the claimant when combined with publicly available information.
  • Avoid over-redaction; the court expects careful tailoring.

• Review and variation

  • Expect the order to be revisited at the return date. Be ready with updated evidence on harm, leaks, and whether narrower terms would now be sufficient.
  • If circumstances change, apply to vary or discharge promptly.

• Common pitfalls

  • Overbroad, indefinite orders without a proper evidential base.
  • Seeking secrecy to avoid embarrassment or reputation damage alone.
  • Skipping media notification where time allowed.
  • Weak case on public interest analysis or failure to consider alternatives.

Summary Checklist

• Can you show a strong claim in misuse of private information or confidentiality?
• Have you met the section 12 HRA “likely to succeed at trial” threshold?
• Have you weighed Articles 8 and 10 using the Re S approach and addressed public interest?
• Is a super injunction truly necessary, or would anonymisation and a narrow reporting restriction suffice?
• Are the terms clear, specific, and time-limited with a prompt return date?
• Have you complied with full and frank disclosure duties?
• Have you notified the Press Association’s Injunctions Alert Service (unless impossible) and explained any departure?
• Have you planned for open justice: a public judgment or press summary when safe?
• Are service arrangements, including on persons unknown, workable and evidenced?
• Do you have a plan for monitoring, enforcement, and rapid variation if circumstances shift?

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