Following his attempts to keep his private life out of the newspapers, a well known English Premiership footballer is as likely to be remembered for his off the field exploits as his on the field ones. As a result of these attempts, he has sparked a legal debate on the merits of the so called “super-injunction”.

So what is a super-injunction? In order to bring some clarity to this developing area of law, a Report entitled “Super Injunctions, Anonymised Injunctions and Open Justice” was published last month by a government appointed committee in the UK. In this Report, a super-injunction is defined as “an interim injunction which restrains a person from (i) publishing information which concerns the applicant and which is said to be confidential or private and (ii) publicising or informing others of the existence of the order and the proceedings”. It is this second element, namely the prohibition on the very existence of the injunction being reported in the press, which transforms an interim injunction into a super-injunction.  

So what does this mean? In effect, this prohibits the media from publishing any details in relation to the parties who sought the injunction and the reasons for which it was sought.  As such an applicant, if successful, can ensure that a potentially explosive story in relation to their personal life is kept out of the media spotlight.  The benefit of this to a celebrity who relies on a scandal free public image is obvious.

So why have these injunctions obtained such media coverage?  Once obtained, a super-injunction precludes a newspaper from reporting on what the English judiciary has described as the “tittle-tattle about the activities of footballers’ wives and girlfriends”. In opposing these injunctions, newspapers have stressed that their right to freedom of expression is unduly curtailed. The judiciary and media organisations tend to differ in their view as to “what the public are interested in” and “what is in the public interest”. In general, the judiciary is of the view that there is no public interest served in newspapers publishing details regarding the private lives of so-called celebrities.  

What is the Irish position? Though there has been much discussion on the issues pertaining to super-injunctions, it is interesting to note that since 2010, only two have been granted in the UK. This issue has yet to be considered by the Irish Courts. The principle of open justice is, however, enshrined in our Constitution. As such, if an application is made in Ireland for a super-injunction, the Irish Courts are likely to follow the recommendations made by the Master of the Rolls in the UK and only grant such an injunction in the most exceptional of circumstances.

Contributed by Mark O’Shaughnessy.

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