Articles 8, 10 and the ‘Super Injunction’ [updated x2]

1 February 2010 by Adam Wagner

There was significant media attention over the weekend on the imposing and then lifting of a so-called ‘super injunction’ against press coverage of Chelsea footballer and England Captain John Terry’s alleged extra-marital affair. Mr Justice Tugendhat reversed a previous decision to impose the injunction (read judgment). Super injunctions not only block publication of the details of the case, but also any mention of the case existing at all. This morning’s Guardian asks whether this decision could be the beginning of the end for the super injunction:

Article 8 of the European Convention on Human Rights enshrines the right to privacy. But Index on Censorship is concerned that this right is increasingly used as a pre-emptive alternative to a defamation suit. In some ways, a superinjunction works better than a libel suit: after all, in libel cases, the allegations must be published first, and there is a chance (though only slight) that the litigant may actually lose.

The Government is apparently surveying judges and libel lawyers at present with a view to changing the law. John Terry is not the first high profile example; late last year the energy company Trafigura, also attempted to use the super injunction to prevent the press reporting certain aspects of litigation against it.

Update – 2 Feb 2010: – Analysis of the effect of the judgment on Outlaw.com

Update – 23 Feb 2010: Analysis from the BBC