The Veil of Secrecy: A Comprehensive Analysis of Superinjunctions in English Law

Many thanks to our sponsor Esdebe who helped us prepare this research report.

Abstract

Superinjunctions represent a uniquely potent and persistently contentious instrument within English legal jurisprudence, distinguished by their dual capacity to prohibit the dissemination of specified information and, critically, to conceal the very existence of the injunction itself. This extensive research paper undertakes a profound exploration of the multifaceted legal underpinnings of superinjunctions, tracing their historical evolution and examining the stringent criteria that govern their imposition within the UK’s intricate legal framework. It meticulously dissects the delicate and often precarious equilibrium that must be struck between paramount national security imperatives, fundamental individual privacy rights, the bedrock principle of freedom of the press, and the essential democratic demand for public accountability. Furthermore, the paper delves into the profound ethical ramifications and the tangible impact of such pervasive gag orders on governmental transparency and the cultivation of public trust, particularly in scenarios where public funds are implicated or where issues of national security are ostensibly at stake. Through a detailed analysis of judicial precedents, legislative intent, and societal reactions, this report aims to illuminate the complex interplay of rights and responsibilities that define the application of superinjunctions in a contemporary, information-driven society.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

1. Introduction: Unveiling the Enigma of Superinjunctions

Injunctions, as a cornerstone of equitable relief in English law, have long served to prevent threatened or continuing wrongs. However, the emergence of ‘superinjunctions’ has introduced a distinct and controversial variant, pushing the boundaries of traditional legal restraint. The term ‘superinjunction’ gained significant public and legal currency following a series of high-profile cases, particularly in the late 2000s and early 2010s. Unlike a standard injunction, which merely prohibits the publication of certain information, a superinjunction extends its reach to forbid any mention of its own existence, thereby casting a double veil of secrecy over both the content and the judicial order itself. This unparalleled level of secrecy has ignited a vigorous and ongoing debate, challenging fundamental principles of open justice, freedom of expression, and the public’s right to know in a democratic society. The controversy surrounding these orders reached a fever pitch in 2009 with the landmark Trafigura case, an incident that starkly illustrated the potential for such injunctions to suppress information of significant public interest and even parliamentary discourse (Lowther, 2011).

Historically, the English legal system has grappled with the tension between individual rights and public access to information. Prior restraint on publication, a concept abhorrent to many common law traditions, has generally been viewed with extreme caution, reserved for exceptional circumstances where profound and irreparable harm is demonstrably likely. However, the advent of the digital age, characterised by instantaneous global communication and the proliferation of social media, has profoundly altered the landscape of information dissemination. This technological evolution presented unprecedented challenges to the protection of privacy and confidential information, leading some to argue for more robust protective measures. Simultaneously, it amplified calls for greater transparency and accountability, creating a jurisprudential battleground where the boundaries of legal restraint are constantly tested.

The genesis of the superinjunction, therefore, can be understood as a response to perceived deficiencies in existing legal remedies for privacy invasion and breach of confidence in an era where information, once released, can become irrevocably public within moments. Yet, its inherent secrecy mechanism – the prohibition on reporting the injunction’s existence – fundamentally clashes with the principle of open justice, a pillar of the English legal system that mandates court proceedings be conducted openly and publicly. This tension forms the crux of the debate surrounding superinjunctions, compelling a thorough examination of their legal foundations, historical application, and profound societal implications.

This paper will navigate this complex terrain by first delineating the precise legal definitions and characteristics that distinguish superinjunctions from other forms of judicial restraint. It will then meticulously explore the legal framework that empowers courts to grant such extraordinary orders, paying particular attention to the interplay between common law principles, statutory provisions like the Human Rights Act 1998, and procedural rules. A detailed analysis of the criteria for their imposition will follow, illustrating the stringent conditions courts must consider. The historical trajectory of superinjunctions, from their early applications to the pivotal events of 2011 and more recent developments, including a critical examination of the ‘Afghan super-injunction’ case, will provide crucial context. Finally, the paper will extensively explore the ethical implications of these orders, their impact on public trust, and the perennial challenge of balancing competing fundamental rights, specifically national security, individual privacy, and the indispensable role of a free press in a functioning democracy.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

2. Legal Basis of Superinjunctions: A Framework of Secrecy

2.1 Definition and Distinctive Characteristics

A superinjunction, often colloquially referred to as a ‘double-gagging order’, represents a highly specific and exceptionally powerful form of interim prohibitory injunction within English law. Its defining characteristic, which elevates it beyond a standard privacy or confidentiality injunction, is its dual prohibition. Firstly, it restrains the publication of specific, usually sensitive, information. Secondly, and uniquely, it prohibits the reporting or disclosure of the fact that the injunction itself has been granted, or that legal proceedings relating to it even exist. This means that not only is the subject matter of the injunction kept secret, but the very act of the court intervening to protect that secrecy is also hidden from public scrutiny. As the Neuberger Committee (2011) aptly noted in its seminal report, this ‘double-gagging’ element is what truly distinguishes a superinjunction.

To illustrate the distinction: a standard privacy injunction might prevent a newspaper from publishing details of a celebrity’s private life. The newspaper would still be free to report that an injunction had been granted, perhaps stating ‘an injunction has been issued preventing the publication of certain private information relating to X’. In contrast, a superinjunction would prevent the newspaper from publishing the private details and from reporting that any injunction concerning X had been granted at all, thus creating an impenetrable wall of silence around the entire legal process. This level of secrecy is intended to prevent the ‘Streisand Effect’ – the phenomenon where attempts to hide information inadvertently draw more attention to it (Mathieson, 2011).

The practical effect is profound. Media organisations, journalists, and indeed the public, remain entirely unaware that a court has made a significant order curtailing freedom of expression. This lack of public knowledge hinders any form of journalistic challenge, legal intervention, or public debate about the appropriateness or scope of the injunction, undermining the principle of open justice. Superinjunctions are typically granted on an interim basis, meaning they are temporary orders issued before a full trial, usually to prevent irreparable harm while the substantive legal arguments are prepared. However, their impact during this interim period can be conclusive, as the very purpose of the information may be time-sensitive, and its suppression, even temporarily, can effectively achieve the applicant’s objective.

2.2 Legal and Procedural Framework

The legal foundation for superinjunctions, like other forms of injunctions, is rooted in the equitable jurisdiction of the High Court, which allows judges to make orders preventing anticipated wrongs or restraining ongoing ones. This inherent power is now significantly shaped and supplemented by statute and procedural rules.

a. Common Law Principles:

At common law, the power to grant injunctions evolved from the Court of Chancery’s equitable jurisdiction, designed to provide remedies where common law damages were insufficient. Two primary common law causes of action underpin privacy and confidentiality injunctions, from which superinjunctions derive:

• Breach of Confidence: This tort protects confidential information from unauthorised disclosure. The core elements are: the information must have the necessary quality of confidence, it must have been imparted in circumstances importing an obligation of confidence, and there must be an unauthorised use or disclosure of that information to the detriment of the party communicating it. Many early privacy cases were framed as breaches of confidence, often arising from private relationships or commercial dealings.
• Misuse of Private Information: While not a traditional tort, this cause of action developed from common law principles in response to the Human Rights Act 1998, particularly Article 8. It aims to protect individuals’ reasonable expectation of privacy from unwanted intrusion and dissemination of private facts. Unlike breach of confidence, there is no requirement for the information to have been imparted in confidence; its private nature is sufficient.

b. Statutory Basis: The Human Rights Act 1998 (HRA):

The HRA 1998 fundamentally reshaped the landscape for privacy injunctions by incorporating the European Convention on Human Rights (ECHR) into UK law. The relevant articles are:

• Article 8 (Right to Respect for Private and Family Life): This article provides a broad right to privacy, encompassing personal autonomy, physical and psychological integrity, home, and correspondence. Courts grant injunctions to protect this right when its invasion is deemed unlawful or disproportionate. This is the primary driver for many privacy-related superinjunction applications.
• Article 10 (Freedom of Expression): This article protects the right to hold opinions and to receive and impart information and ideas without interference by public authority. It is the counterweight to Article 8 and is central to media freedom. When considering an injunction, courts must perform a delicate balancing act between Article 8 and Article 10.

Section 12 of the HRA 1998 is particularly relevant for injunctions affecting freedom of expression. It mandates that no relief shall be granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. This imposes a significant hurdle, elevating the threshold for granting interim injunctions against the press and reflecting the high value placed on free speech. The Neuberger Committee (2011) clarified that superinjunctions, by definition, directly engage and restrict Article 10 rights.

c. Procedural Framework: Civil Procedure Rules (CPR) and Contempt of Court Act 1981:

• Civil Procedure Rules (CPR): These rules govern civil litigation in England and Wales. While no specific CPR rule explicitly creates superinjunctions, various rules facilitate the secrecy that allows them to exist:

  • CPR 39.2(4): This rule allows a court, in exceptional circumstances, to order that all or part of a hearing be held in private, or that the names of parties or witnesses should not be disclosed, or that information relating to the proceedings should not be published. This is the procedural hook that allows for anonymised proceedings and, by extension, superinjunctions. The justification often hinges on the need to protect the welfare of a child, the safety of individuals, or sensitive commercial information.
  • CPR 5.4C: This rule generally allows non-parties to obtain copies of statements of case and judgments, but it also provides for restrictions on access if necessary for the administration of justice. Superinjunctions typically involve orders to restrict access to the very existence of these court documents.
  • CPR Part 25: Deals with interim remedies, including injunctions. This part sets out the general principles for seeking and granting such orders.

• Contempt of Court Act 1981: This Act primarily deals with contempt of court, including publishing information that creates a substantial risk of serious prejudice to active legal proceedings. More broadly, it ensures compliance with court orders. A breach of a superinjunction constitutes a contempt of court, an offence punishable by imprisonment or a fine. This is the ultimate enforcement mechanism that lends superinjunctions their considerable power.

In essence, the legal basis for superinjunctions is a synthesis of common law duties (confidence, privacy), statutory rights (HRA Article 8), and procedural mechanisms (CPR 39.2(4)) enforced by the robust powers of contempt of court. The extraordinary nature of their secrecy, however, means they represent a significant departure from the foundational principle of open justice.

2.3 Criteria for Imposition: The Judicial Balancing Act

When a court considers whether to grant a superinjunction, it embarks on a complex and highly fact-specific balancing exercise, weighing competing fundamental rights and public interests. The Neuberger Committee (2011) identified key factors, which courts consistently apply, albeit with nuances depending on the specific case. The test for an interim injunction generally requires the applicant to show that there is a serious issue to be tried, that damages would not be an adequate remedy, and that the balance of convenience lies in favour of granting the injunction. However, for superinjunctions, particularly those impacting freedom of expression, a higher threshold and additional considerations apply:

1. Serious Allegation and Risk of Harm: The applicant must demonstrate that the information they seek to suppress is genuinely private or confidential and that its publication would cause serious, irreversible harm. This harm can be reputational (e.g., irreparable damage to public image, career), financial (e.g., loss of business, stock market impact), or psychological/physical (e.g., severe distress, threat to personal safety). The more profound and demonstrable the potential harm, the stronger the case for restraint. For instance, revealing the identity of a police informant would entail a direct and serious risk to life, justifying extreme secrecy.

2. Reasonable Expectation of Privacy: Under the misuse of private information tort, the court must first determine if the information itself is ‘private’ and if the individual has a ‘reasonable expectation of privacy’ in relation to it. This involves an objective assessment of the context in which the information was acquired, the nature of the information, and the circumstances of the individuals involved. Even public figures may have a reasonable expectation of privacy in certain aspects of their lives.

3. Public Interest vs. Private Interest (Article 8 vs. Article 10): This is the most crucial and contentious factor. The court must perform a rigorous balancing act between the applicant’s Article 8 right to privacy and the media’s (and public’s) Article 10 right to freedom of expression. The Human Rights Act 1998, Section 12(4), explicitly directs the court to ‘have particular regard to the importance of the Convention right to freedom of expression’ when considering interim relief. This means the default position is against prior restraint. For an injunction, especially a superinjunction, to be granted, the private interest in suppression must clearly and demonstrably outweigh the public interest in disclosure. The concept of ‘public interest’ is distinct from ‘what is interesting to the public’. Public interest typically relates to matters of legitimate public concern, such as:

   • Exposure of crime, fraud, or serious wrongdoing.
   • Protection of public health or safety.
   • Promotion of open justice and governmental accountability.
   • Misuse of public funds or official corruption.
   • Information directly relevant to political or democratic processes.
     Courts are generally reluctant to find a public interest in mere gossip or private sexual encounters, unless there is a broader context of hypocrisy or significant public deception.

4. Proportionality and Necessity: Any interference with Article 10 must be ‘necessary in a democratic society’ and proportionate to the legitimate aim pursued. This requires the court to consider whether the imposition of a superinjunction is the least restrictive means of achieving the desired protection. Is there a less intrusive measure that could adequately safeguard the applicant’s rights? This leads to the next criterion.

5. Effectiveness of Alternative, Less Restrictive Measures: Before resorting to a superinjunction, courts consider whether alternative, less draconian measures would suffice. These could include:

   • Anonymised Injunctions: Prohibiting publication of information but allowing the media to report the existence of an injunction, perhaps by referring to ‘a prominent individual’ or ‘PJS’ (as in one famous case), without revealing their identity.
   • Anonymisation of Parties/Proceedings: Allowing reporting of the case’s facts but keeping the identities of those involved confidential (e.g., by referring to them as ‘X’ or ‘Y’).
   • Redaction: Permitting publication of a document or report with sensitive sections blacked out.
   • Undertakings: Seeking a formal promise from the media organisation not to publish, which if broken, constitutes contempt of court.
   • Delayed Publication: Allowing publication after a certain event or period, rather than indefinite suppression.

   A superinjunction is only considered if the court is convinced that these lesser measures would be ineffective in protecting the asserted rights. For instance, if the very reporting of the existence of the injunction would allow the public to deduce the suppressed information, or if it would alert dangerous individuals to the fact that their activities are known to the authorities, then a superinjunction might be deemed necessary. The Neuberger Committee (2011) explicitly recommended that superinjunctions should be granted only where ‘they are strictly necessary’ and ‘for no longer than is necessary’.

These criteria underscore that superinjunctions are not granted lightly. They represent a significant curtailment of a fundamental democratic right and are reserved for exceptional circumstances where the need for absolute secrecy is demonstrably compelling and proportionate to the harm sought to be averted.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

3. Historical Application of Superinjunctions: From Obscurity to Public Outcry

The concept of a legal order that not only suppresses information but also its own existence did not spring into being fully formed. Its historical application reflects evolving societal norms, technological advancements, and the judiciary’s attempts to adapt equitable principles to modern challenges.

3.1 Early Cases and the Trafigura Catalyst (2009)

While the term ‘superinjunction’ was coined in 2009, the underlying principle of extensive secrecy orders had been applied in certain, often less publicised, contexts for years, particularly in cases involving national security, child protection, or highly sensitive commercial secrets. However, it was the case involving the multinational oil trading company Trafigura Beheer BV that catapulted the ‘superinjunction’ into public consciousness and ignited widespread debate about press freedom and transparency (Brennand, 2015).

In September 2009, The Guardian newspaper was preparing to publish an article regarding a confidential report on the alleged dumping of toxic waste by Trafigura in the Ivory Coast in 2006, which reportedly led to thousands falling ill and several deaths. The report, commissioned by Trafigura itself, painted a damning picture. Crucially, a Labour MP, Paul Farrelly, had tabled parliamentary questions in the House of Commons about Trafigura’s role in the incident. Under parliamentary privilege, such questions are protected from defamation laws and are part of the public record.

Trafigura sought an injunction not only to prevent The Guardian from publishing details from the report but also, extraordinarily, to prevent the newspaper from reporting on Farrelly’s parliamentary questions or even that an injunction had been granted concerning them. The High Court initially granted this wide-ranging superinjunction on 11 September 2009. The order prevented The Guardian from revealing any details of the toxic waste report, the fact of its existence, or the content of the parliamentary questions. Furthermore, it prohibited The Guardian from informing the public that such an injunction had been granted.

This extreme level of secrecy provoked an outcry. The Guardian fought the order, arguing it stifled legitimate public interest journalism and infringed parliamentary privilege by preventing reporting on questions tabled in the House of Commons. The core of the legal challenge rested on the conflict between the injunction’s secrecy and the constitutional principle of parliamentary privilege, which protects freedom of speech in Parliament and the right to report its proceedings. Eventually, following intense public and media pressure, and an intervention by the Attorney General, the superinjunction was partially lifted on 16 October 2009, allowing The Guardian to report on the existence of the parliamentary questions, though some restrictions on the report’s content remained. Lord Justice Leveson later commented that the initial injunction was ‘wrong’ (The Guardian, 2011).

The Trafigura case served as a watershed moment. It highlighted:
* The extraordinary breadth of power courts wielded with superinjunctions.
* The potential for such orders to impact democratic processes, specifically parliamentary reporting.
* The inherent conflict between judicial secrecy and the principles of open justice and press freedom.
* The need for greater scrutiny and clearer guidelines on the use of such potent legal tools.

Prior to Trafigura, other cases, often in commercial contexts or involving national security, had employed similar levels of secrecy, but their public profile was limited. Trafigura brought the ‘superinjunction’ from the quiet corridors of the High Court into the glaring light of public and political debate, setting the stage for the controversies that would follow.

3.2 The 2011 British Privacy Injunctions Controversy and the Neuberger Report

The year 2011 witnessed an unprecedented surge in privacy injunctions, many of which were superinjunctions or anonymised injunctions with similar effects, involving high-profile celebrities, sports stars, and even politicians. This period became known as the ‘privacy injunctions controversy’ or ‘injunctions crisis’, triggering widespread public and media frustration. While specific names were initially suppressed by the orders, public curiosity, fuelled by parliamentary statements and social media, led to widespread identification of those involved.

Key cases from this period, though shrouded in initial anonymity, typically involved allegations of marital infidelity, extra-marital affairs, or other private conduct deemed embarrassing or reputational damaging. The public, often through social media platforms like Twitter, began openly discussing the identities of those subject to injunctions, demonstrating the practical limitations of legal orders in an interconnected world. This phenomenon became a textbook example of the ‘Streisand Effect’, where attempts to suppress information inadvertently lead to its wider dissemination.

Notable instances included a Premier League footballer (later widely identified as Ryan Giggs) who had secured a superinjunction to prevent details of an alleged affair from being published. Despite the order, his identity became common knowledge on Twitter, leading to debates about the enforceability of injunctions in the digital age. Similarly, a banker (Fred Goodwin) obtained an injunction to prevent the publication of details about his personal life and a serious health condition, a decision that drew intense scrutiny given his prior role in the collapse of Royal Bank of Scotland and public disquiet over his pension arrangements. Other figures included actors, comedians, and public officials, all seeking to protect aspects of their private lives from media intrusion.

These events prompted a significant backlash from media organisations, politicians, and the public, who argued that injunctions were being used by the wealthy and powerful to circumvent journalistic scrutiny and stifle legitimate public interest reporting. The then Lord Chief Justice, Lord Judge, openly acknowledged the challenges posed by modern technology to such orders, stating that ‘modern technology is out of control’ in this context (The Guardian, 2011). He also emphasised the importance of open justice and the need for greater transparency.

In response to the mounting pressure and public outcry, the Master of the Rolls, Lord Neuberger, established a committee in April 2011 to review the use of superinjunctions, anonymised injunctions, and open justice principles. The Neuberger Committee Report (officially, ‘Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice’) was published in May 2011 and proved to be a pivotal document (Neuberger Committee, 2011).

Key findings and recommendations of the Neuberger Committee included:
* Clearer Definitions: It provided precise definitions for ‘superinjunction’ (as described in Section 2.1) and ‘anonymised injunction’.
* Presumption Against Secrecy: It reaffirmed the strong presumption in favour of open justice and against any form of prior restraint or secrecy order.
* Strict Necessity: Superinjunctions should only be granted where ‘they are strictly necessary’ and for ‘no longer than is necessary’ to achieve their legitimate purpose. They should not be used merely to avoid embarrassment or inconvenience.
* Public Interest Test: It reiterated the stringent public interest test under HRA s.12(4), emphasising that public interest must relate to matters of genuine public concern, not just prurient curiosity.
* Judicial Guidelines: It recommended clearer guidelines for judges on when and how to issue such orders, encouraging them to consider less restrictive alternatives first.
* Monitoring: It proposed better monitoring of injunctions, including a central register of privacy injunctions (though not of superinjunctions, to maintain their secrecy).

While the Neuberger Report did not recommend abolishing superinjunctions, it effectively tightened the criteria for their use and pushed the judiciary towards greater caution and transparency. It marked a turning point, signaling a more restrictive approach to granting these orders, particularly those involving full secrecy. The committee acknowledged the profound implications of such orders for fundamental rights and the democratic process.

3.3 Recent Developments and the Afghan Super-Injunction (2025)

Following the Neuberger Report and the intense public scrutiny of 2011, the use of superinjunctions has indeed declined significantly. Judges became demonstrably more cautious in granting such orders, favouring anonymised injunctions or less restrictive measures where possible. The shift reflected a heightened judicial awareness of the delicate balance between privacy, press freedom, and open justice, along with the practical futility of absolute secrecy in the age of instant digital communication (Brennand, 2015).

However, superinjunctions have not vanished entirely. They remain a tool available to the courts for genuinely exceptional circumstances, particularly where national security, the lives of individuals, or the integrity of sensitive state operations are at stake. Cases involving police informants, intelligence agents, or highly sensitive commercial negotiations still occasionally lead to applications for such orders.

One of the most recent and significant cases to re-ignite the debate around superinjunctions, and indeed secrecy in the justice system, is the so-called ‘Afghan super-injunction’ case in early 2025. This case, though details remain heavily redacted due to the injunction itself, involved litigation concerning the UK government’s efforts to evacuate Afghan citizens following the Taliban takeover in August 2021 (Public Law for Everyone, 2025; LBC, 2025).

While the precise nature of the information under wraps remains secret, reports indicate that the injunction prohibited the disclosure of information relating to aspects of the UK’s Afghan relocation and assistance policy, including possibly details of individuals involved, operational specifics, or intelligence assessments. The government’s argument for the injunction reportedly hinged on national security grounds, specifically the severe and credible risk to the lives of individuals involved in the relocation efforts or still in Afghanistan if certain details were to become public. This included concerns about the safety of Afghan citizens who assisted the UK and whose identities or connections could be exposed, as well as the security of ongoing intelligence operations related to the region.

Critics, however, argued that such an expansive secrecy order undermined governmental transparency and accountability, especially regarding a major foreign policy failure that involved significant public expenditure and had profound humanitarian consequences. They contended that preventing reporting on the details of evacuation efforts, including potential shortcomings or failures, curtailed the public’s right to scrutinise government actions and learn from past mistakes. The case drew comparisons to previous superinjunctions, raising concerns that the government was again resorting to extreme secrecy to avoid scrutiny.

Key implications of the ‘Afghan super-injunction’ case include:
* Reaffirmation of National Security Exception: It underscored that national security remains a potent justification for extreme secrecy in the courts, perhaps the most difficult ground for media organisations to challenge effectively.
* Tension with Accountability: It highlighted the continuing tension between the legitimate need for state secrecy to protect lives and operations, and the equally legitimate public demand for transparency and accountability over government actions, particularly those involving human lives and public funds.
* Open Justice Debate: It reignited the broader debate about the increasing use of closed material procedures (CMPs) and other forms of secret justice, raising fears of a creeping trend towards less transparent judicial processes in national security contexts (The Guardian, 2012).

The ‘Afghan super-injunction’ case serves as a poignant reminder that while the prevalence of superinjunctions for celebrity privacy has waned, their application in areas deemed critical to state interests continues to pose significant challenges to the principles of open justice and democratic oversight. It reinforces the ongoing need for rigorous judicial scrutiny and public vigilance over the scope and necessity of such profound instruments of secrecy.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

4. Ethical Implications and Impact on Public Trust: The Shadow of Secrecy

The existence and application of superinjunctions cast a long shadow over fundamental tenets of democratic governance and public discourse. Their unique ability to hide not only information but also the very act of its suppression generates profound ethical questions and carries significant implications for public trust in institutions.

4.1 Freedom of Speech and Press Freedom (Article 10 ECHR): A Chilling Effect

Superinjunctions pose an immediate and direct threat to the bedrock principles of freedom of speech and, more specifically, press freedom. Article 10 of the European Convention on Human Rights protects the right to impart and receive information without interference by public authority. This right is not absolute, but any restrictions must be prescribed by law, pursue a legitimate aim, and be necessary and proportionate in a democratic society. Superinjunctions, particularly their ‘double-gagging’ aspect, profoundly challenge these limitations.

• Prior Restraint and the Public Watchdog Role: Superinjunctions constitute a form of prior restraint – preventing publication before it occurs. This is generally viewed with extreme suspicion in common law jurisdictions due to its chilling effect on free speech. The press, often referred to as the ‘fourth estate’, serves a vital ‘public watchdog’ function, scrutinising the powerful and informing the electorate. By preventing reporting on information of potential public interest, and crucially, by concealing the very existence of a court order preventing such reporting, superinjunctions cripple this watchdog role. Journalists cannot report on what they do not know is being suppressed, nor can they challenge an order whose existence is legally concealed from them.
• Suppression of Legitimate Inquiry: The secrecy surrounding superinjunctions can inadvertently shield wrongdoing. If journalists are unaware that information has been suppressed, they cannot pursue lines of inquiry that might lead to uncovering matters of genuine public concern, such as corruption, impropriety, or dangers to public health. This effectively removes an entire segment of potential accountability from the public sphere.
• Inequality of Arms: The cost of seeking and defending against superinjunctions is often prohibitive, meaning they are primarily accessible to the wealthy and powerful. This creates an ‘inequality of arms’ where those with significant financial resources can effectively buy secrecy, potentially insulating themselves from public scrutiny that would apply to others. This undermines the principle of equal application of the law.
• Erosion of Open Justice: Open justice is a fundamental principle of the English legal system, ensuring transparency, accountability, and public confidence in the judiciary. Superinjunctions are a direct derogation from this principle. When courts issue secret orders, the public cannot observe how justice is administered, leading to a perception of ‘secret justice’ which can erode faith in the impartiality and fairness of the legal system (Skrine, 2012; The Guardian, 2012). The Neuberger Committee (2011) explicitly acknowledged this concern, stating that ‘the power of the court to hold its hearings in private and to suppress its orders is a very strong one, which must be exercised only rarely and with extreme care’.
• Impact on Online Media and Citizen Journalism: The digital age has blurred the lines between traditional media and individual citizens acting as publishers via social media. Superinjunctions, though legally binding on everyone, are notoriously difficult to enforce against transient, international, or anonymous online actors. This raises ethical questions about the fairness of imposing strict controls on established media organisations while information leaks or circulates unchecked in other forums, potentially making the orders appear arbitrary or ineffective.

4.2 Governmental Transparency and Accountability: A Veil Over State Actions

The ethical implications become even more pronounced when superinjunctions are sought by or on behalf of government entities. While national security is often cited as a justification, the use of such orders by the state directly impacts principles of governmental transparency and accountability.

• Secrecy in Public Interest: Governments inherently require a degree of secrecy to conduct sensitive operations, protect intelligence, and manage international relations. However, this need must be rigorously balanced against the public’s right to know how its government operates, spends public funds, and manages critical policy issues. When the government seeks superinjunctions, it effectively creates zones of non-disclosure around its activities, making it difficult for citizens to assess its competence, integrity, or adherence to democratic norms.
• Misuse of Public Funds: If a superinjunction relates to information concerning the expenditure of public funds or governmental procurement, it prevents taxpayers from understanding how their money is being used, or if there has been any impropriety or inefficiency. This directly undermines the principle of financial accountability in a democratic system.
• Avoiding Scrutiny and Political Embarrassment: A recurring concern is that superinjunctions might be sought not purely for national security or the protection of individuals, but to avoid political embarrassment, mitigate negative public opinion, or suppress inconvenient truths about government failures or unpopular policies. The ‘Afghan super-injunction’ case (2025) arguably illustrates this tension, with critics suggesting the injunction served to limit public scrutiny of the chaotic evacuation efforts.
• Undermining Democratic Discourse: Informed public debate is crucial for a healthy democracy. If critical information about governmental actions, especially those with significant societal impact, is suppressed through superinjunctions, it constrains the public’s ability to participate meaningfully in democratic processes, hold elected officials accountable, and make informed decisions at the ballot box. It creates an asymmetry of information between the governed and the governors.

4.3 Public Trust and the Streisand Effect: A Paradox of Secrecy

Superinjunctions operate on the premise that complete secrecy is the most effective way to prevent harm from information dissemination. However, their very nature can often lead to the opposite outcome, eroding public trust and inadvertently amplifying the very information they seek to suppress – a phenomenon known as the Streisand Effect.

• The Streisand Effect Explained: Coined in 2005 after Barbra Streisand’s attempt to remove aerial photos of her Malibu home from a public website inadvertently drew massive attention to them, the Streisand Effect describes a situation where an attempt to conceal, remove, or censor information has the unintended consequence of drawing wider attention to that information. In the context of superinjunctions, the intense secrecy surrounding them often generates public suspicion and curiosity. Whispers and rumours about ‘secret injunctions’ or ‘secret trials’ can pique public interest to an extraordinary degree.
• Social Media Amplification: The 2011 injunctions controversy provided numerous examples of the Streisand Effect. Despite court orders prohibiting formal media reporting, information about the identities of those involved, and the nature of the suppressed stories, spread rapidly through social media platforms like Twitter. This demonstrated the impotence of traditional legal gag orders in a digitally interconnected world. Once information enters the digital commons, it becomes almost impossible to fully contain.
• Erosion of Trust: When the public perceives that information is being hidden, particularly by powerful individuals or state entities, it breeds distrust. The idea of ‘secret courts’ or ‘secret laws’ undermines the principles of transparency and fairness that underpin public confidence in the judiciary, government, and even the media (if they are seen as complicit in the secrecy, even if legally compelled). This erosion of trust can have long-term consequences for the legitimacy of institutions.
• Damaging Reputation: Ironically, the Streisand Effect can be more damaging to an individual’s or organisation’s reputation than the initial publication itself. The perception of attempting to ‘cover up’ can be worse than the underlying alleged wrongdoing. The public may interpret the secrecy as an admission of guilt or a desperate attempt to manipulate public perception, leading to greater scrutiny and potentially a more negative narrative than if the information had been addressed openly and transparently from the outset.

In essence, while superinjunctions are designed to protect, their extreme secrecy comes at a considerable ethical cost. They interfere with fundamental rights, risk undermining democratic accountability, and paradoxically, can lead to the very public exposure they aim to prevent, ultimately eroding the very public trust upon which effective governance and a legitimate legal system depend.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

5. Balancing National Security, Privacy, and Public Interest: The Enduring Challenge

The existence and application of superinjunctions represent a stark manifestation of the perpetual tension between competing fundamental rights and societal imperatives. The task of the courts, in these highly sensitive cases, is to strike a delicate and just balance between the imperative to protect national security, the individual’s right to privacy, and the overarching public interest in freedom of expression and accountability.

5.1 National Security Considerations: The Ultimate Justification for Secrecy?

National security stands as perhaps the most compelling justification for the imposition of superinjunctions, particularly when direct threats to life, intelligence operations, or the security of the state are alleged. Unlike claims of personal privacy, which often involve reputation or embarrassment, national security arguments typically invoke profound and potentially irreversible harm to the collective safety and integrity of the nation.

• Legal Framework for State Secrecy: English law provides various mechanisms for protecting national security information, including the Official Secrets Acts, which criminalise the disclosure of protected information, and the use of Public Interest Immunity (PII) certificates to withhold evidence in court. Superinjunctions, in this context, serve as a pre-emptive measure to prevent the disclosure of information that could directly compromise ongoing intelligence operations, reveal the identities of agents or informants, expose sensitive counter-terrorism strategies, or prejudice international relations in a way that endangers the nation.
• Judicial Deference and Scrutiny: Courts traditionally accord a significant degree of deference to government claims regarding national security risks. The judiciary recognises that the executive has unique expertise and access to intelligence necessary to assess such threats. However, this deference is not absolute. Judges retain a crucial oversight role, scrutinising the government’s claims to ensure that the asserted risks are genuine, serious, and directly linked to the information sought to be suppressed. They must guard against the executive using national security as a mere pretext to avoid embarrassment or legitimate public scrutiny.
• Closed Material Procedures (CMPs): In complex national security cases, courts may resort to Closed Material Procedures (CMPs), often under the Justice and Security Act 2013. CMPs allow highly sensitive information, deemed too damaging to national security to be heard in open court, to be considered by the judge and a special advocate (a lawyer appointed to represent the public interest and the absent party’s interests) in a closed session. While not directly a superinjunction, CMPs share the characteristic of secrecy and further complicate the open justice principle in national security contexts. The ‘Afghan super-injunction’ case (2025) exemplifies this nexus, where the government likely argued that the details of the relocation efforts, including individuals involved and intelligence considerations, posed a significant threat to lives and operations if publicly revealed. The very application for such an order, and its scope, became subject to intense debate regarding the necessary balance between protecting those at risk and ensuring government accountability for a major policy undertaking.
• The Proportionality Test in National Security: Even in national security cases, the court must apply the proportionality test. Is a superinjunction truly the least intrusive means to protect the asserted national security interest? Could anonymisation, redaction, or a more limited injunction suffice? This is a particularly challenging assessment for judges, who must balance the often-catastrophic consequences of a national security breach against the fundamental importance of an informed public and a free press.

5.2 Individual Privacy Rights (Article 8 ECHR): A Shield Against Intrusion

At the core of many superinjunction applications, particularly those involving celebrities or private individuals, lies the protection of Article 8 ECHR – the right to respect for private and family life. This right is fundamental to human dignity and autonomy, shielding individuals from unwarranted intrusion and the unwanted dissemination of highly personal information.

• Scope of Privacy: Article 8 is broadly interpreted, encompassing a wide array of personal data, relationships, and activities that fall within an individual’s ‘private sphere’. This includes sexual conduct, health information, family relationships, and personal communications. The challenge lies in defining the boundaries of this ‘private sphere’ in a world where personal information is increasingly digitised and shared.
• Reasonable Expectation of Privacy: A key test for Article 8 protection is whether the individual had a ‘reasonable expectation of privacy’ in relation to the information concerned. This is an objective test, taking into account factors like the nature of the information, the context of its acquisition, the applicant’s public role, and any prior public disclosures. For instance, a public figure might have a lower expectation of privacy regarding their public duties, but a higher expectation regarding intimate relationships.
• Vulnerability and Harassment: Superinjunctions can be a vital tool for protecting vulnerable individuals (e.g., victims of crime, children) or preventing relentless harassment. In such cases, the harm from publication extends beyond mere embarrassment to profound distress, fear, or even physical danger. The ‘no-reporting’ element might be considered necessary if merely knowing an injunction exists could identify or endanger the vulnerable party or incite further harassment.
• The ‘Private Lives’ Debate: The debate often revolves around what constitutes legitimately ‘private’ information, particularly for public figures. While the media often argues that the public has a right to know about the private lives of those in the public eye, courts generally distinguish between information that is merely ‘interesting to the public’ (e.g., celebrity gossip) and information that is genuinely in the ‘public interest’ (e.g., revealing hypocrisy by a public official or a danger to the public). Superinjunctions are almost exclusively granted to protect the former when there is no genuine public interest justification for publication.

5.3 Public Interest and Accountability (Article 10 ECHR): The Cornerstone of Democracy

Counterbalancing the claims of national security and individual privacy is the fundamental principle of public interest and accountability, primarily expressed through Article 10 ECHR. A robust and unencumbered press is seen as a vital mechanism for ensuring transparency, preventing abuse of power, and fostering an informed citizenry.

• The Public Watchdog Function: A free press plays a crucial role in holding power to account – whether governmental, corporate, or individual. It investigates, reports, and exposes wrongdoing, thereby contributing to a healthy democratic process. Superinjunctions, by virtue of their secrecy, directly impede this function by preventing scrutiny not only of the information itself but also of the court’s decision to suppress it.
• Open Justice as a Principle: The principle of open justice demands that court proceedings be conducted publicly, judgments be accessible, and the reasons for judicial decisions be transparent. This ensures accountability of the judiciary, enhances public confidence in the legal system, and allows for public debate and scrutiny of legal principles. Superinjunctions represent a significant departure from open justice, allowing elements of the judicial process to be conducted in secret.
• Defining ‘Public Interest’: As noted earlier, the distinction between ‘public interest’ and ‘what is interesting to the public’ is critical. Courts must rigorously assess whether the information genuinely contributes to a public debate on a matter of legitimate concern. This is a high bar for the media to meet, especially when weighed against serious privacy claims. Examples of legitimate public interest include:
  • Exposing criminal activity, corruption, or serious impropriety.
  • Protecting public health or safety.
  • Preventing the misleading of the public by prominent individuals or institutions.
  • Information necessary for citizens to make informed political decisions.
• Accountability of Power: Superinjunctions have raised concerns that they can be used by the powerful to escape accountability. If individuals or entities with significant influence can suppress negative information about themselves, it undermines the mechanisms by which democratic societies hold their leaders and institutions to account for their actions, particularly when those actions affect the public or involve public funds.

The enduring challenge in the application of superinjunctions lies precisely in this dynamic tension. Each of these three imperatives – national security, individual privacy, and public interest/accountability – holds immense weight in a democratic society. The role of the judiciary is to meticulously weigh the specific facts of each case, apply the rigorous tests of necessity and proportionality, and ultimately determine which interest, in that precise context, must prevail, always bearing in mind the high threshold for any restriction on freedom of expression and the fundamental importance of open justice.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

6. Conclusion: Navigating the Complexities of Secrecy in the Digital Age

Superinjunctions stand as a testament to the perpetual tension between fundamental rights and societal demands in a rapidly evolving information landscape. They represent a complex intersection of legal principles, ethical considerations, and democratic values, posing enduring challenges to the English legal system and the public sphere it serves.

While serving as a powerful, albeit rare, tool to protect individual privacy and, critically, national security, their unique ‘double-gagging’ nature inevitably raises profound concerns regarding freedom of speech, press freedom, and governmental transparency. The historical trajectory, from the catalytic Trafigura case to the celebrity injunctions of 2011 and more recent applications such as the ‘Afghan super-injunction’, demonstrates a continuous struggle to reconcile the need for secrecy with the imperative of openness in a democratic society.

The judiciary’s approach, significantly shaped by the Neuberger Committee’s recommendations, has become markedly more cautious since 2011. There is a stronger presumption against granting superinjunctions, a heightened emphasis on the rigorous application of the proportionality test, and a preference for less restrictive alternatives like anonymised injunctions or redactions. This shift reflects an increased judicial awareness of the ‘chilling effect’ on journalism, the practical limitations imposed by social media, and the inherent conflict with the principle of open justice.

However, the ‘Afghan super-injunction’ case serves as a potent reminder that the debate is far from over. In contexts involving national security, intelligence operations, or direct threats to life, the state’s legitimate need for secrecy can still lead to the imposition of such extraordinary orders. This highlights the enduring dilemma: how to allow the state to protect its citizens and interests effectively, while simultaneously ensuring robust public scrutiny and accountability for its actions, particularly when those actions involve significant public resources or have profound humanitarian consequences.

The ethical implications of superinjunctions are multifaceted. They challenge the very essence of a free press as a public watchdog, potentially enabling the powerful to shield themselves from legitimate scrutiny. They risk eroding public trust in institutions by creating zones of ‘secret justice’, and paradoxically, can backfire through the ‘Streisand Effect’, drawing more attention to the very information they seek to suppress. These outcomes underscore the fundamental importance of transparency as a cornerstone of legitimate governance.

As societal norms continue to evolve and technological advancements further blur the lines between public and private, the application and ethical implications of superinjunctions will remain a critical area of legal and public discourse. The future will likely demand innovative approaches that acknowledge the realities of digital information flows while steadfastly upholding the fundamental rights to privacy and freedom of expression. The balance between these competing interests requires not only careful judicial consideration but also ongoing vigilance from the public and media, ensuring that the veil of secrecy, when drawn, is only ever done so with the utmost necessity, for the shortest possible duration, and with the most rigorous justification in a democratic society.

Many thanks to our sponsor Esdebe who helped us prepare this research report.

References

• Brennand, M. (2015). The life and death of the super-injunction. North East Law Review. Retrieved from https://northeastlawreview.wordpress.com/2015/03/17/the-life-and-death-of-the-super-injunction/
• LBC. (2025). What are superinjunctions and why was Afghan relocation ruling unprecedented? LBC. Retrieved from https://www.lbc.co.uk/news/what-are-superinjunctions-afghan-relocation-ruling-unprecedented/
• Lowther, J. (2011). Q&A Torts 2011-2012. Abingdon: Routledge. ISBN: 978-0-415-58580-0.
• Mathieson, K. (2011). Super-injunctions: an update. Inforrm’s Blog. Retrieved from https://inforrm.wordpress.com/2011/04/18/super-injunctions-an-update-kirsty-mathieson/
• Neuberger Committee. (2011). Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice. Master of the Rolls. Available via Parliament.uk and Judiciary.uk.
• Public Law for Everyone. (2025). The Afghan super-injunction case: Some constitutional implications. Public Law for Everyone. Retrieved from https://publiclawforeveryone.com/2025/01/15/the-afghan-super-injunction-case-some-constitutional-implications/
• Skrine, S. (2012). The Use of Super Injunctions by Courts. LawTeacher.net. Retrieved from https://www.lawteacher.net/free-law-essays/equity-law/the-use-of-super-injunctions-by-courts-law-essay.php
• The Guardian. (2011). Super-injunctions: modern technology out of control, says lord chief justice. The Guardian, 27 April 2011. Retrieved from https://www.theguardian.com/media/2011/apr/27/super-injunctions-lord-chief-justice-twitter
• The Guardian. (2012). Secret court proposals compared to superinjunctions. The Guardian, 19 April 2012. Retrieved from https://www.theguardian.com/law/2012/apr/19/secret-court-proposals-superinjunctions