In July, a UK High Court judge lifted the super-injunction that had prevented information about a leak of highly sensitive data by a Ministry of Defence employee being made public for almost two years. The superinjunction was constitutionally unprecedented and has raised important rule of law questions relating to open justice, democratic accountability and human rights.

In 2023, a judge granted the super-injunction banning publication of both the data and the existence of the injunction itself. Subsequent hearings with representatives from the media took place, but the court maintained the super-injunction until July, based on serious risks to life. Meanwhile, the government established a secret resettlement scheme specifically for people affected by the compromised dataset. The government has estimated the cost of the scheme - which was not subject to either parliamentary or pubic scrutiny - to be around £800 million. ‘It's fundamentally objectionable for decisions that affect the lives and safety of thousands of people and the commitment of millions of pounds of public money to be taken in circumstances where they're completely insulated from public debate,’ says Stephens CBE.

Olivia O’Kane, an officer of the IBA’s Media Law Committee and a partner at DWF in Belfast, says that super-injunctions are rare and that the legal threshold is very high for Article 2 – the right to life – to be engaged to prevent the publication of information. ‘The regular court reviews illustrates that the court was very alive to the public interest,’ she says. ‘The fact that the media were present in the court is of huge significance because oftentimes super-injunctions are obtained, and the media is neither notified nor present’. 

During the proceedings, the judge said that, while he determined that the continuation of the super-injunction was necessary, it gave rise to ‘serious free speech concerns’ and ‘had the effect of completely shutting down the ordinary mechanisms of accountability that operate in a democracy’

Pia Sarma, Editorial Legal Director at The Times, led the newspaper’s efforts to discharge the super-injunction alongside representatives of six other media organisations. She says the super-injunction was very difficult to challenge because some of the hearings were closed, meaning media representatives did not have access to a ‘vast amount’ of evidence placed before the judge. She added the ban on talking about the existence of the super-injunction also made it impossible for journalists to make enquiries to gather evidence to challenge the reasons for the injunction. ‘The use of super-injunctions in conjunction with closed material procedures is particularly problematic and I think there should be a review of whether that works and how it should work in those circumstances,’ she says.

In 2011, Lord Neuberger, the most senior civil judge in England and Wales at the time, conducted a review of super-injunctions following controversy over their use by celebrities and wealthy individuals to suppress reporting of scandals. His report found that super-injunctions were, in fact, rare and should only be granted for short periods when secrecy was ‘strictly necessary’ and that the media should be given the chance to contest applications for injunctions before they are approved.  

O’Kane says that despite the judge following a fair process in relation to the Afghan superinjunction we ‘must remain vigilant because any derogations from open justice must be exceptional, must be justified in the law, based on evidence and any restrictions should be necessary and only granted to the extent to which it is being sought’.

The Afghan case has also raised questions about whether the use of super-injunctions by government is more widespread. Stephens CBE says the government should release statistics on the number of superinjunctions it has obtained to increase transparency. ‘You don’t have to say what they are about, but at least you would know it’s something the government is looking at,’ he says.

Sarma says the establishment of an independent body to oversee the use of super-injunctions by the government may help increase accountability. She notes that even the Intelligence and Security Committee of Parliament was unable to scrutinise the Afghan super-injunction and the evidence put before the court. ‘In general, the super-injunction was unprecedented because of the length of time it was in place,’ she says. ‘I think the judge put in place a proper process which made it fair, but I think you have to really question whether its always possible for the media to fight in this way. There are a lot of media organisations that simply do not have the resources to fund this kind of thing’.

Image credit: luzitanija/adobestock