A super injunction is defined as “A directive that forbids both the public disclosure of information on a particular issue and also any disclosure of the existence of the directive itself.” All sounds a bit serious doesn’t it? Okay, in an effort to put it more simply: a super injunction is a Court Order which says that you cannot write about a particular issue nor can you mention the order preventing you from writing about the issue!

On Thursday 19th May, the Supreme Court handed down its decision in respect of the “celebrity threesome” case. The well known entertainer, who can only be named by the initials ‘PJS’, was seeking to prevent The Sun from publishing his identity and that of his family in a story relating to infidelity.

A similar remedy for people seeking privacy in relation to a legal matter is an anonymised order . This is a directive which allows publication of the existence of the injunction but the parties to the injunction remain anonymous – quite different to an actual super injunction.

The Supreme Court’s Decision

The Supreme Court has ruled that PJS cannot be named and the injunction preventing publication of his name remains in force. It is understood that Lord Mance said in his Judgement that the Court of Appeal was wrong in its earlier decision, that publication of the story would “infringe the privacy rights of the Claimant – PJS – his partner, and their children” and he should therefore remain “anonymous”. The injunction will remain in place until trial or further order.

But are super injunctions “worth it”?

Many celebrities have obtained a so called ‘super injunction” and have either lost or waived the protection of the directive in previous years. John Terry, Rio Ferdinand and Jeremy Clarkson to name a few. But are they worth it? Not according to Clarkson, who told the Daily Mail “…injunctions don’t work.”

Indeed, the hyper-connected world that we live in has made many question whether the super injunction is worth the effort, money and the court time devoted to securing and enforcing them.

In many cases, the names of the celebrities involved have been printed in other countries. A super injunction is a remedy of the English Courts and as such does not apply to Scotland, Ireland, the USA and Australia, amongst other countries. One carefully worded search term or a glance at social media will often reveal the names of those involved.

In an interview relating to the 2011 Ryan Giggs super injunction furore the Prime Minister David Cameron said: “It is rather unsustainable, this situation, where newspapers can’t print something that clearly everybody else is talking about…”

Despite the Supreme Court’s judgement, it appears to me that Mr. Cameron was right. Ultimately, such a directive protects the parties in England and Wales only. Their names can be published in those countries mentioned above, indeed, in many cases they have already been published before the final decision in the English Court. There is certainly an argument that in this social media age, such directives are not worth it and that their existence and the details they are protecting will become public one way or another. Thus rendering the super injunction pointless.

Are super injunctions just for celebrities and people in the public eye?

The answer is that they are available to all. So is the better question: “Is a super injunction necessary for Mr. Joe Public?”

From what we read about in the press, it does appear that super injunctions are, in the main, applied for by the famous to prevent publication of any indiscretion that could discredit them or affect their private lives. There is no doubt that there are ordinary members of the public who obtain them, but it is unlikely that the existence of that injunction, and the information it is protecting will become public. Why? Because it is doubtful to be of interest to the public.

It must also be considered that the fact that the existence of the injunction itself cannot be mentioned, in theory, prevents public interest in the matter from growing. That said, human nature is such that when we are told we are not allowed to know something our interest becomes piqued and we develop a curiosity. When discussing the case of PJS and the super injunction with colleagues, it was commented that “I only want to know who the applicant is because I am being told I can’t know”. Therefore, if the injunction was not obtained in the first place would the public be all that interested? The legal wrangling in the case of PJS has simply drawn more attention to it, thus, it can be argued, making the details remain in the media for longer. Clearly, obtaining a super injunction draws public attention to the existence of the protected information.

It appears to me, again in spite of the Supreme Court Judgement, that obtaining and arguing over a super injunction in court is not only costly, but of little worth in the connected age that we live in.

Disclaimer: 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 on their own particular circumstances.