Leong Wai Hong and Aufa Radzi examine the genesis of super-injunctions.
 
INTRODUCTION
 
Most people would already be familiar with the term ‘injunction’, which is a form of court order to either prohibit a party from doing, or to compel a party to do, a specific act, temporarily or permanently. In appropriate circumstances, a temporary or interim injunction may be granted to maintain the status quo prior to trial.
 
A breach of an injunction amounts to a contempt of court and the party in breach may be subjected to committal proceedings.
 
Since 2009, a new form of injunction has emerged in the United Kingdom which has led to growing public concern about its use. This type of injunction is widely known as a “super-injunction” as it restrains a person from publicising the existence of the injunction order. Amongst the concerns were that a super-injunction restrains freedom of speech and is contrary to the principle of open justice. Further, there was a perceived growth in the use of this form of injunction.
 
These concerns led to the setting-up in the United Kingdom of a Committee on Super-Injunctions chaired by Lord Neuberger, Master of the Rolls, in April 2010 to examine the issues relating to the practice and procedures concerning the use of super-injunctions. The Report of the Committee on Super-Injunctions was released in May 2011 and came to be known as the ‘Neuberger Report’.
 
In Malaysia, super-injunctions came to the attention of the general public due to the widespread coverage given to 2 cases, one of which involved John Terry, the captain of the Chelsea football team and the then captain of the English national football team, and the other, Ryan Giggs, the Manchester United football star. For reasons that will be explained later, the Ryan Giggs case was not a super-injunction case but was wrongly reported as such by the media.
 
This article provides an overview on super-injunctions and examines whether Malaysian courts would grant a super-injunction.
 
SUPER-INJUNCTIONS
 
The Committee on Super-Injunctions defines a super-injunction in paragraph 2.14 of the Neuberger Report as –
 
“an interim injunction which restrains a person/a party from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings…”
 
What makes a super-injunction “super” is that it not only prevents publication of information, but the existence of the injunction itself is to be kept secret.
 
THE ORIGINS OF THE SUPER-INJUNCTION
 
The term “super-injunction” was coined by The Guardian newspaper in relation to an injunction issued by Maddison J on 11 September 2009 which prohibited it from reporting on a question raised in Parliament by Paul Farrelly, a Member of Parliament, on a report commissioned by an oil trading corporation, Trafigura, in relation to the alleged dumping of toxic waste in the Ivory Coast.
 
The names of parties to the proceedings had originally been anonymised as RJW & SJW v The Guardian News and Media Ltd and Person or Persons Unknown. The case has since come to be known as the Trafigura case.
 
ELEMENTS OF A SUPER-INJUNCTION
 
The features of a super-injunction are:
 
(1)     it will be served not only on the respondents to the application, but also on third parties who are not parties to the proceedings;
 
(2)     the proceedings will be anonymised and heard in private, and as a consequence, the judgment will also be private;
 
(3)     access to court documents relating to the proceedings may be restricted and third parties will have to apply to the court to obtain a note of the hearing or a copy of the materials read by the judge; and
 
(4)     the “super” element is the prohibition on the disclosure or communication of the existence of the injunction order and the proceedings.
 
In practice, most of the super-injunctions have been sought by public figures or celebrities to prevent media organizations from revealing their identities and publishing details of their personal lives. The “super” element of the injunction operates to prevent media organisations from even reporting the existence of the injunction.
 
SUPER-INJUNCTIONS AND ANONYMISED INJUNCTIONS
 
There are many other forms of injunctions with the same features, i.e. anonymity and restriction of publication, as a super-injunction. In fact an anonymised injunction, where the names of either or both parties are not disclosed in the cause papers, is often confused with a super-injunction.
 
In the highly publicised case of CTB v News Group Newspapers Ltd & Thomas [2011] EWHC 1232, Ryan Giggs, obtained an anonymised order to prevent the disclosure of his alleged affair with model, Imogen Thomas. This case was erroneously reported by certain newspapers as one that involved a super-injunction. As pointed out in the Neuberger Report, no super-injunction was granted, or apparently applied for, in this case.
 
As mentioned above, an injunction is not a "super-injunction" if there is no restriction in publicising the existence of the injunction.
 
The following cases, John Terry (previously referred to as “LNS”) v Persons Unknown [2010] EWHC 119 and DFT v TFD [2010] EWHC 2335 (QB), illustrate one of the considerations that the court will adopt in granting or extending a “super-injunction”.
 
THE JOHN TERRY CASE
 
In John Terry (previously referred to as “LNS”) v Persons Unknown [2010] EWHC 119, the High Court granted a super-injunction on an interim basis in favour of Terry, to restrain the publication of his extra-marital affair with Vanessa Perroncel, the ex-girlfriend of his former team-mate and fellow England football player, Wayne Bridge.
 
However, the High Court refused to continue the super-injunction and ruled that the freedom of expression outweighed Terry’s right to suppress the reporting of his affair. Tugendhat J held that Terry’s motivation for the injunction was to protect his endorsement deals rather than his privacy rights.
 
DFT v TFD
 
In DFT v TFD [2010] EWHC 2335 (QB), a super-injunction was granted pending trial to protect private information as there were allegations of blackmail against the respondent who might avoid service if she had been tipped-off.
 
A return date of 7 days was fixed by Sharp, J who granted the super-injunction. On the return date, the Court maintained the injunction but discontinued the “super” aspect of the order as the injunction had been served on the respondent before that date.
 
THE NEUBERGER REPORT
 
As mentioned above, the controversies surrounding super-injunctions have resulted in the publishing of the Neuberger Report by the Committee on Super-Injunctions.
 
The Committee recognised that although the principle of open justice is a fundamental constitutional principle, it is not an absolute principle as derogations can be properly made where, and to the extent that, they are strictly necessary for the proper administration of justice. 
 
The Committee concluded that a super-injunction which, in the words of the Neuberger Report, threatens to create "a form of permanent secret justice", derogated from the principle of open justice and ought to be granted only when it is strictly necessary. The Committee stressed that a super-injunction cannot in practice, become permanent.
 
The Committee recommended that a 'return date' be issued whenever a super-injunction is granted, so as to enable the injunction to be kept under review by the Court.
 
The Committee also recommended a draft Practice Guidance be issued and emphasised that notice must be given to third parties (such as media organizations) who are likely to be affected by the super-injunction, before an application for such injunction is to be heard.
 
The aforesaid requirement that notice be given would enable Section 12 of the Human Rights Act 1998 (which embodies right to freedom of expression set out in Article 8 of the European Convention on Human Rights) to be complied with. Section 12 inter alia prohibits relief from being granted against a person against whom the relief is being sought, unless the court is satisfied that the applicant has taken all practicable steps to notify that person or there are compelling reasons why he should not be notified.
 
Although the Committee acknowledged the right to privacy under Article 8 of the European Convention on Human Rights, the Committee opined that it was beyond its remit to consider issues of substantive law reform, which was a matter to be considered by Parliament, or by the courts.
 
The Committee considered, but did not recommend, that applications for super-injunctions be heard by specialist judges as it was neither justifiable nor practicable. The Committee also opined that there was no justification to introduce a fast-track appeal for such injunctions as avenues already existed to seek expedited appeals.
 
The Committee also concluded that the perceived growth in the use of super-injunctions was a misconception. In coming to this conclusion, the Committee reviewed 18 cases that purportedly concerned super-injunctions and found that whilst all these cases involved anonymised injunctions, only 3 actually involved the grant of super-injunctions.
 
WOULD THE MALAYSIAN COURTS GRANT A SUPER-INJUNCTION?
 
The question then arises as to whether the Malaysian courts would grant a super-injunction.
 
In John Terry, the Court held that a super-injunction is granted to prevent an alleged wrongdoer from being tipped-off about the proceedings before an injunction could be applied for, or made against him, or before he can be served. In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, an alleged wrongdoer might consider that he could disclose the information, and hope to avoid the risk of being in contempt of court. In some cases, an alleged wrongdoer may destroy evidence which is required to identify him as the source of the leak. Tipping-off of the alleged wrongdoer would thus defeat the purpose of the order. It is usual for the prohibition on disclosure to end once the injunction order has been served on the defendant.
 
The powers of a Malaysian court to grant injunctions are stipulated in the Specific Relief Act 1950 and the Rules of the High Court 1980.
 
In John Terry, two causes of actions were relied on to support the application for a super-injunction, namely, breach of confidence and misuse of private information.
 
In Malaysia, breach of confidence is a recognized cause of action (see Seven Seas Industries Sdn Bhd v Philips Electronic Supplies (M) Sdn Bhd [2008] 5 MLJ 157), as is the invasion of privacy (see Maslinda Ishak v Mohd Tahir Osman & Ors [2009] 6 CLJ 653, Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 4 CLJ 397 and Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd [2011] MLJU 150).
 
Based on the principles cited in John Terry, it is likely that a Malaysian court will grant a super-injunction if the necessary elements identified in that case are satisfied.
 
CLOSING REMARKS
 
It is not known for certain whether any super-injunction has been granted by the Malaysian courts as the “super” element of such an injunction would prohibit the disclosure of the existence of the injunction.
 
With the existence of many local bloggers, tweeters and online writers who fearlessly (and erroneously) regard the internet as a lawless frontier, it is likely that if such an injunction has been granted by the Malaysian courts, it would have been reported or tweeted on the internet as juicy secrets, such as those concerning extra-marital affairs or sexual trysts of politicians, film starlets and aspiring models, cannot be kept hidden for long.