The rise and fall of privacy injunctions

In May 2011 a committee chaired by the Master of the Rolls published its report “Super Injunctions, Anonymised Injunctions and Open Justice” as a result of concerns around the growth of the use of super-injunctions and the increasing frequency with which High Court proceedings concerning the misuse of private of information were being anonymised.

The Ministry of Justice has subsequently published statistics on privacy injunctions dealt with at hearings at the High Court or Court of Appeal in London for the periods August to December 2011, January to June 2012, July to December 2012, January to June 2013 and, most recently, July to December 2013. 

In the period between August 2011 and June 2013, there were 22 applications for interim privacy injunctions (an injunction having been granted in every case, four of which by consent). In the same period, there were nine hearings for final privacy injunctions (with injunctions being granted in all but one case). The last interim super-injunction granted was in 2011 with one final super-injunction granted between January and June 2013.  

The statistics for July 2013 to December 2013 show that the number of privacy injunctions dealt with at the Royal Courts of Justice during this period were easily at their lowest since data collection began in 2011. The key highlights are set out below:

• There was only one case in which the High Court considered an application for a new interim injunction prohibiting the publication of private or confidential information;
• There was only case in which the High Court considered whether to continue or amend an interim injunction;
• There were no cases in which an application for a permanent injunction was considered;
• There were no proceedings before the Court of Appeal relating to privacy injunctions.

Comment   

Whilst the statistics are not complete and do not cover every application, I believe that some clear conclusions can be drawn.

It is my view that applications for privacy injunctions have fallen so dramatically in the period from July to December 2013 for the following reasons:

1. Potential claimants may be deterred from seeking privacy injunctions in circumstances where it is so easy and indeed common for private and confidential information to be published by third parties on the internet. This is a key factor that needs to be properly considered by lawyers when advising clients about the suitability of applying for privacy injunctions, especially in view of some particularly well -known cases where information has been published on social media like Twitter and Facebook notwithstanding orders made by the courts;
2. Now that super-injunctions are almost extinct compared to 2010, individuals may be deterred from applying for interim privacy injunctions due to concerns about the proceedings being made public. This is particularly important for high profile figures who need to weigh up the PR consequences of taking on the media in court;
3. It is increasingly the position that courts require cases to go to trial where interim privacy injunctions have been granted. This means that potential claimants need to think very carefully about the long term implications of issuing proceedings for urgent interim relief;
4. It could be argued that there is greater restraint in the media post-Leverson, although it is obviously difficult to weigh up the extent to which such restraint might have impacted on the latest statistics. My personal view is that this is the least relevant factor off the four highlighted.

It will be interesting to see the next set of statistics which should be due out soon. Following the recent decline, it would be surprising if there is now a sharp rise in the use of privacy injunctions for the reasons outlined above. However, claimants have been almost entirely successful in obtaining privacy injunctions in the period since data collection began in 2011 and it therefore remains a powerful weapon provided they are aware of the potential pitfalls.