With reports that the identities of four celebrities who obtained gagging orders have been briefly revealed on Wikipedia, media lawyer Duncan Lamont reports on the rise of the super-injunction.
Injunctions have evolved into super-injunctions to counter, in the eyes of celebrities, ever greater scrutiny of and intrusion into their private lives.
This is due in part to the rise of "citizen journalists" (more accurately, photo journalists) and the greater desire of certain individuals to brag about, and cash in on, their ability to have sexual relationships with celebrities.
Until the 1990s there was considerable criticism in the press of those who became famous solely for their sexual exploits with the famous. Now they are interviewed on breakfast television. Society, and the media, changed. The law has simply evolved to keep pace with the new reality.
The legal principles that evolved into the super-injunction came from cases that were not actually centred on kiss-and-tell stories but photographs: Naomi Campbell complaining about the publication of a shot of her leaving Narcotics Anonymous, and Michael Douglas and Catherine Zeta Jones (and OK! Magazine) objecting to the publication of paparazzi photographs of their private wedding celebrations.
What is a super-injunction?
Put simply, a super-injunction means the claimant cannot be identified. It was argued that if the press could say that footballer X had obtained an injunction against lap-dancer Y, people would assume that sex was involved even if it wasn't. To work - to protect the claimant and his family - it had to be anonymised (the "super" bit).
Super-injunctions were not invented for celebrities by lawyers and judges, but by the Attorney General on behalf of the Government to protect notorious criminals - such as Mary Bell and James Bulger's killers - whose murderous crimes were so objectionable that their safety, if and when released, could be imperilled.
Super-injunctions were not invented for celebrities by lawyers and judges, but by the Attorney General to protect the safety of notorious criminals.
It was only later that anonymity was extended to those who wanted to stop the tabloid press intruding into their private sex lives. And the courts have made it plain from the start that if there is any public interest justification into the intrusion, then no such injunction should be given. It is not just footballer John Terry who has found that attempts to gag the media can fail.
They are never handed out like confetti but there must be "an intense focus" on the facts so that a judge is satisfied an injunction is needed. One cannot injunct a newspaper unless one can satisfy the court that the newspaper is about to publish very intimate and private information.
Super-injunctions can also be used when people are potentially the victims of blackmail, as well as in family cases (where they have existed for generations). Another sort of super-injunction concerns commercial information, but this too is much older and does not create so much fuss.
Kiss-and-tell stories exploded when businessman Sir Ralph Halpern, who resurrected Burton and founded Top Shop, was caught out having an affair with teenage model Fiona Wright.
Both gained notoriety overnight, with some benefit to both. She made the front page of Penthouse and a genre was created, culminating perhaps in ex-nurse Abi Titmuss whose raunchy relationship with a celebrity (and a sex tape) made her a household name and very marketable brand.
The cost of super injunctions (£20,000-£50,000 if bitterly contested) may put them beyond the reach of most, but the media seems only interested in the rich and beautiful anyway.
Kiss-and-tell was never acceptable in Europe, where even elected politicians have protection of their privacy unimaginable here.
Imogen Thomas, a former Big Brother star whose affair with a footballer led to a recent super-injunction, announced on This Morning that she felt "exploited" (presumably by the media) and wished she had been able to obtain a super-injunction too! It seems the tabloids did not care that neither party wanted to sell their sex secrets to boost newspaper sales...
But kiss-and-tell was never acceptable in continental Europe, where even elected politicians have protection of their privacy unimaginable here then or now.
The courts do not allow super-injunctions to be used to protect politicians or judges. They are there solely to protect relatively private people (even when famous) from the celebrity-obsessed splurge of media interest that has lasted for a couple of decades but which may soon - thanks to Max Mosley's legal cases - seem as antiquated as selling cigarettes in a cinema.
Duncan Lamont has both obtained and resisted super-injunctions and is a partner at Charles Russell LLP
26 April 2011