Home Business Intellectual Property What is a Gagging Order?

What is a Gagging Order?

A gagging order is an injunction issued by the court to restrict or prohibit the public disclosure of private or confidential information on a particular matter. It is a legal means of protecting the privacy of an individual and as such is legally referred to as a ‘privacy injunction’.

Gagging orders are commonly sought by celebrities or high profile public figures so as to censor the media from publicising information about their private lives. That said, these types of order are not the exclusive domain of the rich and famous.

Who can apply for a gagging order?

Gagging orders may be issued to protect the private information of any individual or organisation. By way of example, these types of orders can be used in the following instances:

  • to prevent publications of allegations about the commercial affairs of a company
  • to protect ongoing police or military operations
  • to protect the anonymity of children whose parents or carers are accused of murder, child abuse or other crimes
  • to protect the anonymity of vulnerable or other adults, including victims of crime
  • to protect the new identities of convicted criminals.

The law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children or the vulnerable who bear no responsibility for such conduct.

What are the different types of gagging order?

The basic premise of a gagging order is that it will prevent the respondent from publishing or broadcasting information about the applicant that is said to be private and confidential. In many cases, even where the judgment of the court is publicised following an application for a gagging order, the names of the parties involved will also remain anonymous. This is to prevent what is known as jigsaw identification.

In other instances, the gagging order will not only prevent the respondent from publicising the information or identity of the applicant, it will also restrain that party from reporting the existence of the order itself. This is known in the popular press as a ‘super-injunction’.

In limited circumstances, the court can also grant an injunction ‘contra mundum’. This type of privacy injunction has the effect of permanently binding third parties, even unknown third parties, who were not parties to the litigation. Whilst a court can grant an interim or temporary injunction pursuant to the ‘Spycatcher’ principle – ie; prohibiting third parties from revealing the private information, even though they are not themselves party to the litigation – this can only run until trial or further order. The injunction ‘contra mundum’ allows the court to grant a final order that is essentially enforceable worldwide.

By way of example, the High Court made such an order in relation to Robert Thompson and Jon Venables, the two child murderers of James Bulger. The injunction ‘contra mundum’ prevented any publication that might lead to the identification of their new identities, as well as their whereabouts for life.

What are the criteria for obtaining a gagging order?

An application for a gagging order will need to be made to the High Court and will fall to be determined by reference to the Human Rights Act 1998 and the European Convention on Human Rights scheduled to it. Those rights include the right to respect for private and family life (Article 8), as well as right to freedom of expression (Article 10).

Further, section 12 of the 1998 Act provides that where a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression, the court must have particular regard to the importance of this right and the extent to which:

  • the material has, or is about to, become available to the public, or
  • it is, or would be, in the public interest for the material to be published.

As such, the court will need to carry out a balancing exercise between the rights of the individual applicant, as against the wider public interest – factoring in whether the information in question is already in the public domain and whether damages would constitute an adequate remedy.

The court will also hear evidence about the likely impact of adverse publicity on the health and wellbeing of the applicant and members of the applicant’s family, and whether or not this, together with any other relevant factors, outweigh the respondent’s rights to freedom of expression. If the court finds it both necessary and proportionate to make an injunction, the application for a gagging order will be granted.

In the case of Thompson and Venables, the privacy injunction had been designed to protect their rights under Articles 2 and 3 (ie; the right to life and the right not to be subject to inhuman or degrading treatment).

What is the duration of a gagging order?

An interim gagging order will be granted until trial or further order. The court will not, however, grant an injunction to restrain publication before trial unless it is satisfied that the applicant is likely to establish that publication should not be allowed. A final order can be expressed to remain in force for a specified period of time or, in certain circumstances, for life.

How is a gagging order enforced?

A deliberate breach of a gagging order will be classed as a contempt of court. Any alleged breach may become the subject of committal proceedings which, if proven, may result in a term of imprisonment and/or a fine. The gagging order must carry a warning to this effect. This is known as a penal notice.

What are the challenges associated with gagging orders?

Notwithstanding the grant of an interim or final gagging order preventing the respondent from publicising the private information about an individual or organisation, this does not in itself ensure the privacy or anonymity of the applicant.

The law can only offer a certain measure of protection against invasions of privacy. In particular, stories about celebrities or other high-profile public figures, or allegations relating to major companies or convicted criminals, will always attract public interest. Further, the likelihood in many cases of hard copy publication outside the jurisdiction is often high. Consequently, this type of information is likely to receive widespread coverage across the internet and social media.

Whilst steps can be taken to secure removal of offending information from URLs and web pages, this can prove to be a hopeless task. The same information will often continue to reappear in new places, and tweets and other forms of social networking are also likely to promote its free circulation.

In these circumstances, a respondent may seek to set aside any gagging order on the grounds that the information is widely within the public domain.

Should legal advice be sought?

If you believe that defamatory material or private information concerning you is about to be publicised, you should seek expert legal advice immediately. The law relating to gagging orders is highly complex and you will need to seek advice from a specialist in human rights.

In circumstances where private or confidential information is publicised prior to you obtaining a gagging order, your legal adviser can also assist you in any claim for defamation of character. Defamation occurs when someone makes a false statement about you to a third party that is damaging to your reputation or causes other harm.

Lawble
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