Super injunctions: How do those that are subject to it know about it?

[Schnitte]

This is a spinoff from the IMHO thread What do the dopers think of the Kate Middleton brouhaha. A (controversial) thing in English law is the privacy-protecting “super injunction”: A court ruling that prohibits not only media coverage of a particular story, but also of the existence of that court ruling itself.

These injunctions are issued in civil proceedings between two parties, but they’re not only binding as against the respondent but apply generally (in the Trafigura example, the ruling expressed this by saying that the injunction is addressed to “the person or persons unknown”). So how are the other media outlets that were not a party to the proceedings supposed to know about the injunction that they’re bound by?

[griffin1977]

@Schnitte

So how are the other media outlets that were not a party to the proceedings supposed to know about the injunction that they’re bound by?

So I’m assuming a lot of it happens via the traditional “old boys network” which is how all of this was handled back in the day. E.g. the “D Notice” system that was used to control release of sensitive information in the UK press, and absolutely relied on editors and proprietors being a good sport:

The D-notice system: a typically British fudge that has survived a century

I guess if that fails then you find out when your boss gets a phone call from the lawyers. That is why the example in this case seems to have all the hallmarks of a super injunction. Its very likely the person writing the Guardian column reporting on what is said on the US talk shows would not be in the know, and so mention what Colbert said about the royal affair, then have to rapidly edit it after a phone call from the lawyers:

Cele|bitchy | The Guardian edited out Rose Hanbury’s name in their...

[gnoitall]

Not a law-talkin’ person; doubly so, not a UK law-talkin’ person, but this seems on-point:

Injunctions and super-injunctions: an introduction

Under the so-called ‘Spycatcher principle’, an interim injunction binds anyone who has notice of it: anyone who is aware of its terms.

A super-injunction was also granted temporarily in the John Terry case but was discharged by the judge on his own initiative the following week (see Terry v Persons Unknown [2010] EWHC 119 (QB)).

This case, incidentally, illustrates another issue which arises in privacy cases: the ‘persons unknown’ injunction.

This arises when the claimant becomes aware that someone is offering (usually for money) private information about him: for example, cases (which are surprisingly common) of intimate photographs stolen from cameras or laptops.

The claimant cannot identify the ‘vendor/thief’ but obtains an injunction naming him as the defendant (often using a description like “A Person Unknown, offering photographs of the Claimant for sale”).

This injunction is then served on the media – with the intention that they will be bound under the Spycatcher principle.

There is a rule – which was said to have been broken in the Terry case – that the claimant must notify any newspaper which he knows to be interested in the information of the injunction application, to give it an opportunity to object.

In short, a privacy injunction binds anyone who is aware of it. A super-injunction, as a subset of privacy injuctions, does too. However, there is an obligation to notify journalists that the injunction exists.