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In the simplest terms, an injunction is a court order that requires the person or persons on the receiving end to refrain from certain unlawful acts. It is usually the case for an injunction to be granted after the unlawful act has been committed.

However, if it can be demonstrated that an unlawful act is about to be committed, a court can grant an injunction to prevent it from being committed in the first place.

Injunctions have been in the news increasingly over the past few years, as they have been used to prevent the publications of new stories that relate to the private lives of public figures. But they have also been used to ‘gag’ the press from reporting stories regarding companies.

One of the more notable examples of this is in 2009 when Trafigura sought to prevent the Guardian publishing details of a report that it had commissioned into a toxic-dumping incident in Ivory Coast.

The first thing a claimant seeking an injunction must persuade the court is that an unlawful act is about to be committed. Looking at celebrities and their private lives, injunctions are sometimes granted if the claimant can argue a story about to be printed is untrue and will cause damage to their reputation because publication could amount to defamation.

However, since the Human Rights Act 1998 came into force, celebrities have increasingly been seeking to rely on the right to a private life enshrined in Article 8 as a basis for a ‘gagging order’ to prevent publication of stories about their personal affairs.

When the court is considering am injunction, they have to balance the individual’s right to privacy with the freedom of expression contained in Article 10 (Article 10 protects your right to hold your own opinions and to express them freely without government interference). The courts have been willing to grant such ‘gagging orders’ in cases where they consider that the publishing of the story is not within the public interest.

In England and Wales, judges are responsible for carrying out the balancing act between the right to privacy of the individual and the freedom of the press on a case-by-case basis, and this can lead to uncertain outcomes and is extremely costly.

Then what is a super-injunction? The term is a tag that the media has given to injunctions where part of the order prevents publication of the details of the case itself or even that the injunction has been made at all.

One such injunction we do know has been granted was in favour of Andrew Marr, the BBC journalist, who has now decided to waive the privacy afforded to him under pressure from other journalists such as Private Eye’s Ian Hislop, who argue the use of super injunctions is curtailing the press freedom that journalists are trying to protect.

For the time being, super injunctions are here to stay, and will no doubt be continued to be used in privacy cases until parliament enacts specific legislation to cover when it will be lawful to curb the freedom of the press.

If you would like advice on this or any other legal issue, call dispute resolution solicitors today.