Gagging orders (ab)used to keep dirty laundry hidden

Holly Bancroft looks at the murky world of superinjunctions

- Holly Bancroft

The Ministry of Defence used a superinjunction to cover up a data breach that put an estimated 100,000 Afghans at risk of reprisals from the Taliban.

The superinjunction was granted “contra mundum”, meaning “against the world”, by the courts, and is enforceable against anyone who knows about it, rather than a named party. Here’s what you need to know about the legal order:

What is a superinjunction?

An injunction is a legal order that prevents a person or publication from reporting certain information said to be confidential or private. A superinjunction adds an extra layer to this by banning the reporting of the existence of the order itself. Under a superinjunction, a person cannot publicise or inform others about the existence of the order or the underlying legal proceedings.

Superinjunctions need to be kept under review by the court and can only be granted when strictly necessary. If someone breaches a superinjunction, they may be found in contempt of court and face being imprisoned, fined or having their assets seized.

The use of superinjunctions, also colloquially referred to as gagging orders, gained prominence in the Noughties after a string of celebrity scandals.

A committee was set up in 2010 to examine their use following the Trafigura and John Terry cases. In the case of Trafigura, an oil-trading firm was granted a superinjunction against The Guardian to stop the paper publishing details of a report commissioned by the company into a toxic-dumping incident in Ivory Coast.

In the John Terry case, the former England football captain was initially granted a superinjunction in 2010, preventing a News of the World story about his private life. Journalist Andrew Marr also took out a controversial superinjunction in 2011 over an extramarital affair, and later admitted he felt “uneasy” about using such an order.