Super-injunctions make an unwelcome appearance

One could be excused for feeling utterly confused by a court story in the Weekend Herald the Saturday before last, but none of the blame lies with the publication or its reporter.

It was bewildering because it related to an attempt to apply a total ban on publication of any details of the case to which it related. And it extended to reporting that the injunction against publication had even been sought.

That, in my book, is called a super-injunction. That is also how the Herald described it.

A super-injunction is an interim injunction which not only restrains publication of information which concerns the applicant and is said to be confidential or private, but also stops publicising or informing others of the existence of the order and the proceedings. That is the ‘super’ element.

Such an injunction was sought after Herald senior journalist Kim Knight contacted “a New Zealand institution” in relation to a story she was pursuing. The Weekend Herald said the plaintiffs were “alleging it [the Herald] was about to publish potentially defamatory allegations” about an overseas individual.

The Herald did not reveal the name of that individual for two reasons: First because it was covered by the application for an injunction and, secondly, because the individual alleging potential defamation had not even been named in court documents made available to Herald publisher NZME. The paper says it does not know his name, calling him a “mystery man”.

NZME’s lawyer described as “Kafkaesque” the fact the defendant did not even know the identity of the person alleging potential defamation.

‘Kafkaesque’ might be an overworked term, but it seemed on the button in this case. In Franz Kafka’s novel The Trial, which was published after his death, Josef K. is arrested by a mysterious authority for a crime which is never revealed, and his ‘trial’ is a masterpiece of confusion.  The novel appears to be unfinished, but it contains a chapter with an abrupt end – Josef K. is executed.

When the injunction application was taken to court, suppression orders were made pending the matter being heard by Justice Christian Whata in the Auckland High Court. At that hearing, he revoked some of those orders, allowing the publisher to reveal the fact of the sweeping injunction against it and rescinded suppression orders over the identity of the overseas individual and the naming of the three plaintiffs who had brought the case. However, the judge allowed a seven-day period in which the plaintiff could appeal and in the interim the suppression of names and other details would continue.

And, as I write this commentary, they remain secret. I suppose there could be two reasons for that: Either an appeal has been lodged but has yet to be heard, or an appeal was successful and the order is so sweeping even that fact cannot be revealed.

Justice Whata made his own view clear. He agreed it was “inconceivable” that a defendant asserted to have defamed someone should not be told the identity of their accusers.

“I’m at a loss as to why we’d have a person who wants to come to this court and commence proceedings in the context of open justice but at the same time says I don’t want anyone to know I’m doing it,” Justice Whata said.

“I can see why the press is worried about an injunction like this. It becomes a blanket sort of suppression on the issue.”

He said the order being sought was unprecedented.

Doubtless he is right in terms of defamation in New Zealand, but it is not the first time this sort of blanket injunction has been sought.

In 2018 the Law Society sought widespread suppression after it inadvertently sent (to an unrelated third party) details of a complaint alleging sexual harassment or bullying by a senior lawyer. The application sought to suppress the existence of the injunction itself, as well as all details covered by it. The court granted the suppression on the grounds of breach of privacy, but the order was challenged by Stuff and modified to allow publication of the application and why it had been sought. The then Minister of Justice Andrew Little said that the super-injunction was a “mis-step” by the Law Society and that it looked “like a bit of panic reaction”.

What undoubtedly is unprecedented is the inability of NZME to know its accuser. That right is entrenched both in English common law, which protects the right to cross-examination, and Roman law, which guarantees those accused of a crime the right to look their accusers in the eye. I cannot see how a veil of secrecy could continue to be placed over the identity of the  overseas-based man if defamation proceedings were to follow publication of a story resulting from Kim Knight’s investigation.

That is one aspect of the present case but the more significant issue is the potential to effectively kill off a story that the Herald deems to be “a matter of clear public interest”.

Super-injunctions may be a rarity in New Zealand but they have caused considerable disquiet in the United Kingdom. Several cases raised concerns that open justice and the legitimate rights of a free press were under attack.

In one, commodity trader Trafigura sought a blanket ban on The Guardian publishing a story about the dumping of toxic waste off the Ivory Coast. Only after the matter found its way onto Wikileaks and a question was asked in Parliament was it brought into the light and Trafigura was obliged to drop the injunction. It later made a £30 million settlement in a class action brought by almost 30,000 Ivorians.

In another case, England footballer John Terry sought to stop the (now defunct) News of the World from publishing details of his private life by seeking a super-injunction without the publisher being present in court. The order was initially granted then overturned after the court found there had been insufficient grounds for ordering an injunction without the newspaper having the benefit of being heard on the matter.

An attempt by Manchester United footballer Ryan Giggs to use a super-injunction to suppress stories of an extra-marital affair ultimately came to grief after he was named on Twitter and his identity was later confirmed under Parliamentary privilege. It was one of several examples of social media subverting a super-injunction.

The super-injunction in pursuit of privacy had become fashionable with celebrities – actor Hugh Grant described celebrity injunctions as “fabulous” – and a 2011 poll by the Daily Mirror found that eight out of ten people in the UK believed the use of super-­injunctions against the Press shows there is “one law for the rich, another for the rest of us”.

A year earlier, amid growing disquiet over the Trafigura and Terry cases, a formal enquiry had been launched under the chairmanship of the Master of the Rolls and Head of Civil Justice, Lord Neuberger. Its findings sent a clear message that super-injunctions should be both exceptional and temporary.

The committee stated: “The essential point is that if the courts are too ready to grant super-injunctions or anonymised injunctions, this would be inconsistent with the proper approach to any exception to the general principle of open justice…this requires that such injunctions only be granted following intense scrutiny by the court in the individual case, and only when it is strictly necessary as a means to ensure that justice is done.”

At the heart of its findings was the principle of open justice and the need to ensure that exceptions to that principle were exactly that – exceptional. Super-injunctions should be granted only when “strictly necessary”, must not be permanent, and must be kept under review by the court. You can read its report here.

The use of such remedies in New Zealand should not be prohibited – there may be some circumstance that is worthy of such extreme protection – but it certainly should be discouraged as a means to avoid scrutiny that is in the public interest.

Our courts already set a high bar for interim injunctions alleging defamation. Ursula Cheer, in  Burrows & Cheer Media Law in New Zealand, notes that in such cases an interim injunction will not be granted if there is any doubt that the words were defamatory, if a defendant swears they can prove truth, or there is a recognised defence that could prevail in the case.

Justice Whata’s decision recognised that high bar, and the various principles in play. The stay he allowed on his order taking effect was no more than recognition of the plaintiffs’ right to appeal his decision.

Any form of prior restraint must be approached with extreme caution, and the court must be on high alert when a defendant is unable to counter the claim because they do not know who is trying to constrain them or why. Caution should be all the more acute when a matter of “clear public interest” is at stake. I cannot imagine NZME’s lawyers would give such an assurance to the court for a story about a sportsman’s peccadillos.