Celebrity injunctions have hit the headlines recently though with little explanation of their purpose and substance. Oliver Smith of Keystone Law explains how businesses can also use injunctions to protect private and confidential information. 

Super-injunctions

The use of so called "super-injunctions" by footballers and other celebrities have proved to be highly controversial but they represent a tiny fraction of the number of injunctions granted every day (and night) by the courts to businesses and individuals.  An injunction is a court order requiring a person to do or not to do something which is alleged to breach another person's legal rights.  A "super-injunction" is an injunction the existence of which cannot be revealed.   According to the recent report from a committee on super-injunctions there are only 2 "secret" super-injunctions still in existence since the John Terry case. 

These super-injunctions are usually granted as emergency orders when a potential breach of privacy or confidence is discovered and without any notice to the defendant.  They are made in a private court sitting or over the telephone with a judge and the secrecy part of the order only applies for a short period.   This allows the defendant to be formally served with the order without someone tipping them off about its existence to prevent them publishing the private or confidential information before they are bound by the court order not to do so. 

Anonymity-injunctions

More common are anonymity injunctions where as well as the private or confidential information being prohibited from disclosure or publication the court forbids the release of any information which might enable the identification of the claimant. This would allow a general report that, for example, a married footballer has obtained an injunction to protect private information about an affair he had but would not allow the media to be so specific as to say he was Welsh and played for Manchester United. Long term secret super-injunctions are only needed where there is already information about the claimant in the public domain and an anonymity injunction would not work as information from a general report could be pieced together with previous reports to make a "jigsaw" identification of the claimant.

Confidence and privacy claims by business

The law of privacy has been built by the courts on the long established law of confidence, which has been used by businesses to protect trade secrets and valuable commercial data.  Confidential business information can include computer source code, business plans, research reports, marketing databases and client contact details.   Information can be confidential even if it is not designated as such in an employee's contract.  In addition individuals such as directors and employees have rights of privacy in relation to their working lives.  The law of privacy requires that the claimant has a reasonable expectation of privacy for the information concerned and then the court carries out a balancing exercise between the claimant's privacy right and any public interest in publication under the right of free expression to decide which should prevail in each case.  If only the claimant is present at an emergency application for an injunction then the public interest in publication might not be apparent until the order is challenged later by the media.

• Confidential internal report: Trafigura case: A Swiss oil trading company commissioned a scientific report into allegations that waste it had dumped in the Ivory Coast was toxic. They successfully obtained a super-injunction to prevent publication of leaked details from the confidential report by the media but the super or secrecy part of the injunction was lifted so its existence could be reported after it was mentioned in the House of Commons. Trafigura's lawyers had claimed that reporting of the naming of their client in the Commons was a breach of the injunction but later dropped that argument.
• Affair with colleague: Fred Goodwin case:He obtained an anonymity injunction to protect private information about an affair he had with a colleague while he worked at the Royal Bank of Scotland. These orders can therefore extend to the privacy of company directors whilst at work.
• Company information shared with a lover: Lord Browne's case:The former BP chief executive obtained a privacy injunction to protect information he had shared with his lover about BP's business although this was discharged when a judge decided that he had misled the court.

Different types of injunction

The court can make any order it wishes to assist in enforcing or protecting legal rights and has invented some novel remedies over the years.  It was reported that Ryan Giggs tried to get disclosure of the emails and text messages sent by ex-Sun editor Kelvin MacKenzie to establish whether he had breached the footballer's anonymity injunction by naming him to third parties.  This was refused by the court as a "sledge hammer to crack a nut".  However the court does grant the following types of orders:

• Super-injunction - prohibits any reporting of the existence or details of the injunction and application for it including the claimant's identity and details of the protected information
• Hyper-injunction - like a super-injunction but includes a prohibition on the defendant even discussing the matters with family (which may be an exception in a super-injunction), MPs or even lawyers.
• Anonymity-injunction - prohibits disclosure of any information which could identify the claimant as well as the protected information but not the fact an injunction has been made.
• Norwich Pharmacal order - not strictly an injunction but requires innocent third parties like Internet Service Providers or social media websites who carry emails or postings by unnamed people to disclose details to assist in identifying the people e.g. their unique computer IP address or credit card or account details used to pay for the broadband service used.
• Search and Seizure injunction - requires a defendant to allow the claimant's solicitors (under supervision of an independent solicitor) to turn up at residential or commercial premises unannounced and search for evidence of alleged unlawful actions, take away documents and take copies of the hard drives of any computers found. Failure to co-operate by the defendant can lead to them being arrested and taken to court.
• Freezing injunction - made without the defendant's knowledge and makes a general order freezing their assets up to a certain value to prevent them moving proceeds of fraud or other unlawful activity or evading payment of damages likely to be awarded against them in the future. The order is then served on banks and the land registry before service on the defendant and requires the defendant to list all their assets on oath.
• Springboard-injunction - prevents someone who has gained a competitive advantage over another by unlawful use of confidential information from keeping that advantage by preventing them from engaging in a certain commercial activity for a period of time to allow the claimant to "catch up" and repair the damage.

Problems with enforcement of injunctions

Following the naming of footballer Ryan Giggs on social media websites and in the Commons as a claimant in an anonymity injunction the ability of the courts to enforce controversial super-injunctions is in doubt.  It has been alleged that Giggs' name was put on Twitter by a newspaper to circumvent the injunction and have it lifted on the grounds that the name was in the public domain so the injunction no longer served any useful purpose. 

Mr Giggs' lawyers were reported to be trying to trace the original Twitter poster to investigate this using an order against Twitter to disclose their record of the unique IP address of the computer used to post the name but this may be a fruitless task as Twitter is based in California outside English court jurisdiction.  Now that he has been named, he may seek an order from California where he would probably not be allowed to be anonymous, as South Tyneside Council successfully did recently in a libel claim involving postings on Twitter about their employees. The courts will continue to develop injunctive remedies to help claimants to protect their legal rights as technology changes the way people live and businesses operate. 

The author Oliver Smith is a member of the Keystone Dispute Resolution and Litigation Team and has over 20 years' experience settling disputes involvng a wide range of commercial and intellectual property matters.   He specialises in company and financial services disputes as well as trademark, copyright and libel claims.  Oliver acts for both UK and international companies and has particular experience advising Russian entities. He has practised with a successful City firm and two leading West End media practices. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. To find out more, refer to www.keystonelaw.co.uk, call 020 7152 6550 or email enquiries@keystonelaw.co.uk