“[M]ost importantly, injunctions don’t work. You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter and the internet. It’s pointless.”

per Jeremy Clarkson, Interview with Daily Mail (27 October 2011).

Discuss the above statement. In your opinion, what approach should the law take to the availability and regulation of so-called ‘super-injunctions’ or anonymised injunctions? Should such injunctions be available in Equity to protect the rights of claimants in appropriate cases? If so, what safeguards (if any) should be put in place to ensure that the rights of defendants (and the public) in those cases are adequately protected?

s the issue in this case revolves around the claim that injunctions are “pointless” it

thus follows that the efficacy of injunctions and, in particular, super and A

Examination No. 100366

anonymised injunctions are of primary concern. Having first examined the nature and

purported effect of such injunctions it will then be possible to begin inquiring into

whether they can and should be granted in this jurisdiction and, if so, what safeguards

should be put in place to protect the rights of defendants and the public. Having done

this some conclusions may be drawn as to the approach the law should take to the

availability and regulation of super and anonymised injunctions in this jurisdiction.

1. The Efficacy and Weaknesses of Super and Anonymised Injunctions

An injunction is a discretionary legal remedy which is granted in cases where damages

are insufficient or inadequate compensation for an injury1 or where the assessment of

damages would prove extremely difficult.2 In essence, the purpose of an injunction is to

enforce a substantive legal right or to prohibit the commission of a wrong3 and, if

granted, the effect of the order will amount to the imposition of either prohibitory or

mandatory obligations.4 The former restrains the person who is the subject of the

injunction from doing some specific act, while the latter imposes a positive obligation

requiring a person to perform a specific act.5 In terms of the operation of super and

anonymised injunctions, however, there has been much confusion6 and it is therefore

important to establish a working definition before exploring any weaknesses which

purport to render the super or anonymised injunction “pointless”.

(a) What are Super Injunctions and Anonymised Injunctions?

In the UK, the Report of the Committee on Super-Injunctions: Super-Injunctions,

Anonymised Injunctions and Open Justice, otherwise known as the Neuberger Report

has stated that,

super-injunctions normally concern the protection of information pending trial.

Such information is usually alleged to be private or confidential information. Such

injunctions will therefore, of necessity, engage Article 8 [of the European

Convention on Human Rights], but, because they are seeking to protect

information from publication, Article 10 will also be engaged.7

1 Delaney, Equity and the Law of Trusts in Ireland (2011), at p.517-520. See: Ryanair Ltd v Aer Rianta cpt [2001] IEHC 229 per Kelly J. See also: Clane Hospital Ltd v. Voluntary Health Insurance Board [1998] IEHC 78.2 Yeates v. Minister for Posts and Telegraphs [1978] ILRM 22 at p.24.3 Eady, ‘Injunctions and the Protection of Privacy’; Civil Justice Quarterly (2010), 29(4): 411-427 at p.2.4 Delaney, Equity and the Law of Trusts in Ireland (2011) at p.515-516. See also: Petit, Equity and the Law of Trusts (2012), at p.555-557.5 Delaney, Equity and the Law of Trusts (2011), at p.515. See: Reynolds v. Malocco [1999] 1 ILRM 289.6 Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, (May 2011), at p.16. See also: Part Four of the Report. From here “The Neuberger Report”.7 The Neuberger Report, at p.17.

2

Examination No. 100366

Super, and also anonymised, injunctions are a form of interim injunction granted before

the trial of action and prior to the court making any final determination on rights8 but

which often necessitate a balancing of such rights.9 Moreover, in the UK a super-

injunction engages what is known as the Spycatcher principle10 whereby it “not only

binds those against whom it is made, but also any third parties who have notice of the

injunction”.11 As such, serving the injunction on third party media organisations, for

example, brings them within the ambit of the Spycatcher principle and within the courts

contempt jurisdiction.12 This means that the penalties obtaining in respect of

interferences with the administration of justice or contempt of court may be imposed on

any person or organisation that is on notice of the injunction and breaches its terms.13

This gives the injunction a wide scope of potential effect within the jurisdiction in which

it is granted.

Ultimately, however, what converts the interim injunction into a ‘super’ injunction is its

prohibition on the reporting of the existence of the injunction itself or any proceedings

related to it. The Neuberger Report has defined super-injunction as,

an interim injunction which restrains a person from: (i) publishing information

which concerns the applicant and is said to be confidential or private; and, ii)

publicising or informing others of the existence of the order and the proceedings.14

In contrast, an anonymised injunction restrains a person from publishing information

which concerns the applicant and is said to be confidential or private “where the names

of either or both of the parties to the proceedings are not stated”.15 An anonymised

injunction should be distinguished from a super-injunction as essentially lacking the

second, effectively secret, element.

Taken on its face, a super-injunction with an anonymising order ought to yield quite

some force and these orders have been aptly labelled as “gagging orders” and “curiosity

suppressants” where the administration of justice has allowed “for the entire legal

process to be conducted out of the public view and for its very existence to be kept

permanently secret under pain of contempt".16 In fact, some have gone so far as to

8 Clane Hospital Ltd v. Voluntary Health Insurance Board [1998] IEHC 78.9 In both Ireland and the UK the Convention has been given further legal effect by statute, respectively, by the European Convention on Human Rights Act, 2003 and the Human Rights Act, 1998.10 Attorney-General v. Newspaper Publishing Plc [1988] Ch 333 at p.375 and 380. 11 The Neuberger Report, at p.18.12 The Neuberger Report, at p.18.13 Attorney-General v. Newspaper Publishing Plc [1988] Ch 333; Attorney-General v. The Times Newspaper Ltd [1992] 1 A.C. 191. See also: The Neuberger Report, at p.27.14 The Neuberger Report, at p.29. See also: Maurice Kay LJ in Ntuli v. Donald [2010] EWCA Civ 1276 at [43]ff. 15 The Neuberger Report, at p.2916 Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010) CJQ, vol.29 at p.134.

3

Examination No. 100366

declare that “whipping out a super-injunction is the equivalent of putting a gag round

someone’s mouth, then pulling a bag over their head, tying them to a chair and stealing

their phone so they can’t text for help”.17

Nevertheless, it appears that super and anonymised injunctions are not quite as

effective as they appear and applicants who have successfully obtained them – for

example Jeremy Clarkson in AMN v. HXW18 – are now having them voluntarily lifted.19

What weaknesses, it must be asked, are capable of reducing the effect of super and

anonymised injunctions to practically nil?

(b) Weaknesses

There are several likely explanations for this apparent conflict. One is simply that given

the non-uniform definition of the term an applicant may believe they have obtained a

super injunction when in fact they were only granted an anonymised or interim

injunction. Indeed, commentators have been quick to point out that super injunctions

are not as widespread as they are made out to be, and that anonymised injunctions are

often confused with super injunctions thus leading to unverifiable claims of a

proliferation of super injunctions.20

A second and more ominous explanation is that social media websites such as Twitter

undermine super and anonymised injunctions by disclosing private and confidential

information in a manner which operates outside the jurisdiction of the injunction

protecting that information. On May 9th 2011, for example, a pseudonymous Twitter

account breached privacy orders by tweeting the names of celebrities who had been

granted super and anonymised injunctions.21 Subsequently, the account gathered

thousands of followers many of whom re-tweeted the banned names thus also breaking

the terms of the injunction.22 In particular, on May 16th Manchester United footballer

Ryan Giggs was named as the face behind the injunction initials CTB23 and was alleged

to have had an extramarital affair. The footballer’s lawyers subsequently filed for a

disclosure order against Twitter Inc. in respect of the names of the anonymous account

holders24 who, in the event that the disclosure orders are successful, could face heavy

17 “If a tree falls in the forest and there’s no one to hear it, can Carter-Ruck ban all mention of the sound?,” by Charlie Brooker, The Guardian, October 19, 2009. Available online at: http://www.guardian.co.uk/commentisfree/2009/oct/19/charlie-brooker-super-injunctions (18/12/12).18 [2010] EWHC 2457.19 The injunction granted to Jeremy Clarkson in AMM v. HXW [2010] EWHC 2457.20 The Neuberger Report at p.20 [2.16] and at p.54 [4.4].21 “Twitter account challenges super injunctions,” by Tim Bradshaw, Digital Media Correspondent, Financial Times, May 10 2011. Available on-line at http://www.ft.com/cms/s/0/70393786-7a82-11e0-8762-00144feabdc0.html#axzz2FF0QKot5 (16/12/12).22 Smartt, “Twitter undermines super injunctions,” Communications Law (2011) 16(4): 135-139 at p.135. 23 CTB v. News Group News Media [2011] EWHC 1232 (QB)24 Smartt, “Twitter undermines super injunctions,” Communications Law (2011), at p.136.

4

Examination No. 100366

fines for contempt of court.25 Nevertheless, as long as Twitter takes the appropriate

measures to censor any illegally published information they can argue that they are not

liable as an intermediary in the unlawful disclosure.26

A related weakness stems from the operation parliamentary privilege27 and has given

rise to what is now known as the “hyper injunction”.28 This is a form of injunction which

includes the prohibition on the individual who is subject to the injunction from

disclosing the fact of the proceedings, or discussing the proceedings with an MP.29 This

does not however prevent an MP from drawing his or her own conclusions and giving a

voice to them in Parliament. The Neuberger Report has stated unequivocally that, “No

super-injunction, or any other court order, could conceivably restrict or prohibit

Parliamentary debate or proceedings.”30 In this jurisdiction a similar effect is achieved

by Article 15.13 of the Constitution which provides that members of the Oireachtas

“shall not, in respect of any utterance in either House, be amenable to any court or any

authority other than the House itself”.

A jurisdictional weakness which first emerged to give rise to the Spycatcher principle31

became even more evident on the foot of CTB v. News Group News Media Ltd32 when

the Scottish Sunday Herald published a photo of Ryan Giggs with an intentionally scant

black line coving his eyes containing the word “CENSORED”. The newspaper in its

editorial column added, “Today we identify the footballer whose name has been linked

to a court super injunction by thousands of postings on Twitter”.33 This article, in effect,

had broken the terms of the injunction but the Attorney General for England and Wales,

Dominic Grieve, speaking the following day in the House of Commons acknowledged the

independence of the Scottish Courts and assured the House that no legal action would

follow, stating that “orders made by the courts of England and Wales, generally

speaking, do not have application [in Scotland]”.34 This argument does not, however,

apply to Twitter. Unlike the Scottish Sunday Herald which is not published in England,

Twitter has a global reach and thus engages the principles of international comity. In

25 See: Applause Store Productions Ltd v. Raphael [2008] EWHC 1781.26 Smartt, “Twitter undermines super injunctions,” Communications Law (2011), at p.137.27 “Article 9 of the Bill of Rights 1689 recognises and enshrines a longstanding privilege of Parliament: freedom of speech and debate. It is an absolute privilege and is of the highest constitutional importance.” See. the Neuberger Report at p.vii.28 The Neuberger Report at p.69ff [6.9]. See also: Zukerman, ‘Common law Repelling Super Injunctions, Limiting Anonymity and Banning Trial by Stealth’ (2011), at p.223.29 The Neuberger Report at p.69 [6.9].30 The Neuberger Report at p.vii.31 See above. 32 [2011] EWHC 1232 (QB).33 “Scottish newspaper identifies injunction footballer,” by Adam Gabbatt and Mattew Taylor, Guardian, 22 May 2011. http://www.guardian.co.uk/media/2011/may/22/scottish-newspaper-identifies-injuction-footballer (17/12/2012).34 House of Commons, 23rd May 2011, Column 638. Available online at: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110523/debtext/110523-0001.htm#1105237000004 (17/12/12).

5

Examination No. 100366

this respect Kirwan argues that although the “jurisprudential ground for super

injunctions with extra territorial effect”35 has been laid by Costello J in Deutsche Bank

AG v. Murtagh,36 which dealt with a Mareva injunction restraining foreign assets, the

reality is that the Babanaft proviso37 heavily qualifies this effect such that “it seems

highly unlikely that a court would simply, without further consideration, seek to give

extraterritorial effect to a super-injunction”.38

Natural human curiosity is yet another obstacle that injunctions must surmount in order

to be effective. As Zukerman explains,

The phenomenon that people’s curiosity is excited when they learn that something

is kept secret from them is as old as the story of the Garden of Eden, though

nowadays it tends to be described as the ‘‘Barbara Streisand effect’’.39

It is the courts response to this catch-22 that leads Zukerman to label the super

injunction as a “curiosity suppressant” where the injunction seeks to counteract the

Streisand effect by ensuring that the public do not learn that anything is being kept

secret from them.40 At the time of the CTB affair the Guardian illustrated the Streisand

effect by publishing a graph that demonstrated a huge spike in Twitter mentions of the

name “Ryan Giggs” after it emerged that CTB’s legal team had launched an action

against Twitter to try and restrain mentions of his name online.41

Finally, all of these weaknesses tie in with a process known as “jig-saw identification”

where an individual’s identity is inferred from certain other facts, this being particularly

evident where no prohibition is issued on the reporting of the anonymising order itself.42

2. Safeguards, Regulation and the availability of Super and Anonymised

Injunctions in Ireland

Given the myriad of weaknesses that impact on the effectiveness of super and

anonymised injunctions it is certainly questionable whether such orders, if possible in

this jurisdiction, should be adopted at all. Nevertheless, the idea that safeguards and

court regulation are necessary stems from the fact that super and anonymised

35 Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011) 30 ILT 1, 223-230 at p.8.36 [1995] 2 I.R. 122. Affirmed in Bennett Enterprises Inc. v. Lipton [1999] 2 I.R. 221.37 See: Babanaft International Co SA v. Bassatne [1989] 1 All ER 433. The proviso holds that the order must explicitly state that it will not affect third parties outside the jurisdiction until it has been recognised, registered or enforced by a foreign court.38 Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011), at p.8.39 Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010), at p.13440 Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010), at p.134.41 “Twitter and the mystery footballer,” by Dan Sabbagh, 20th May 2011. Available online at: http://www.guardian.co.uk/technology/organgrinder/2011/may/20/twitter-superinjunctions (18/12/12).42 The Neuberger Report at p.85 (Model Rules: Clause 7). See: MNB v. News Group [2011] EWHC 528.

6

Examination No. 100366

injunctions by their very nature are derogations from the Constitutional principle of

open justice and, if abused or misused, are inimical to the rule of law itself. Thus, if the

weaknesses can be overcome and if super and anonymised injunctions are actually

capable of being ordered in this jurisdiction, it is imperative that appropriate safeguards

and regulations are implemented.

(a) The Principle of Open Justice

The principle of open justice, which has been hailed as “the very soul of justice,” 43 is not

only the primary safeguard in protecting the interests of claimants and the public but is

also the foundation upon which other safeguards and regulations can be developed. This

point is succinctly forwarded by Zukerman who holds that,

However desirable the protection of private and confidential information may be,

it can hardly justify a legal process that is totally concealed from public view. The

legal process does not deal only with the rights and duties of the immediate

parties. It also develops and disseminates the law. Judicial process shapes and

publicises legal standards and is therefore the lifeblood of the rule of law. For this

reason secret process is inimical to the rule of law.44

Open justice ensures that legal proceedings are transparent and open to public

scrutiny, it provides the law with a means to take a precedential and developmental

approach to cases, moreover, it reduces the scope for judicial activism, contributes to

the determination of truth and promotes essential public and parliamentary debate

which inevitably shapes the law itself.45 On the other hand, a legal system that flouts its

obligation to disseminate the law will not only deprive itself of the ability to develop the

coherent methodology necessary for balancing fundamental rights, but the process

itself naturally gives rise to uncertainty and, inevitably, to the undermining of the

system of law itself.46 The net result of mass and, more importantly, unwarranted

derogation is the erosion of public respect and confidence in the rule of law. Lord

Diplock in AG v Leveller Magazine47 stated that “the way that courts behave cannot be

hidden from the public ear and eye [as] this provides a safeguard against judicial

arbitrariness or idiosyncrasy and maintains the public confidence in the administration

of justice”. More recently, Lord Judge CJ stated that “the principle of open justice

43 The Works of Jeremy Bentham: Published under the Superintendence of His Executor, John Bowring (Edinburgh: Tait, 1843), vol. iv at p.316. Quoted by Lord Halsbury in Scott v. Scott [1913] A.C 417 HL and Lord Diplock Home Office v. Harman [1983] 1 A.C. 280.44 Zukerman, ‘Common law Repelling Super Injunctions, Limiting Anonymity and Banning Trialby Stealth’ (2011), at p.224.45 See: Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010), at p.132. 46 See: Richardson J in the decision of the New Zealand Court of Appeal in Moevao v. Department of Labour [1980] 1 NZLR 464 at p.481.47 [1979] AC 440 at p.449-450.

7

Examination No. 100366

represents an element of democratic accountability, and the vigorous manifestation of

the principle of freedom of expression. Ultimately it supports the rule of law itself”.48

These principles have been upheld by the Irish Courts49 and also enjoy a Constitutional

grounding through Article 34.1 which states that justice shall be administered in courts

established by law by judges appointed in the manner provided by the Constitution, and,

save in such special and limited cases as may be prescribed by law, shall be

administered in public.50 It would thus appear that any application for a super injunction

would run afoul of the Constitution and the concurrent common law principles of open

justice.

(b) Exceptions to the Principle of Open Justice

Nevertheless, the principle of open justice, although fundamental, is by no means

absolute. Lord Haldane LC in Scott v. Scott51 noted that the exceptions to the principle

are the outcome of a “more fundamental principle that the chief object of Courts of

justice must be to secure that justice is done … the general rule as to publicity, after all

only the means to an end, must accordingly yield”. 52

In Ireland, at a statutory level, the provisions of s.45(1)(a) of the Courts (Supplemental

Provisions) Act, 1961, for example, allows that justice may be administered otherwise

than in public in “applications of an urgent nature for relief by way of habeas corpus,

bail, prohibition or injunction”.53 In Z v. DPP,54 however, Hamilton P explained that such

applications are normally “so urgent that they must be made to a judge in his home or

someplace to which the public do not directly have access and not to applications which

are made in court”.55 On the other hand, in Microsoft Corporation v. Bright point Ireland

Ltd56 Thomas Smyth J held that there are rare occasions when in the interests of justice

and for good and proper reasons a court may direct that a hearing may be held in

camera and, furthermore, that in the exercise of its inherent jurisdiction, a court may

limit or inhibit the publication of an order made in open court.57 Indeed Kirwan argues

that “Smyth J was essentially acknowledging the ability in principle of the [Irish] courts

to grant what might nowadays be loosely termed a super-injunction”.58

48 R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 at [39].49 See: Irish Times v. Ireland [1998] 1 IR 359 at p.367 and 378ff.50 See, for example, Irish Times v. Ireland [1997] 2 ILRM 54.51 [1913] AC 417.52 [1913] AC 417 at p.437. See also: UK Civil Practise Rule r.39.2(3)(g) which states that a hearing may be in private if the court considers this is necessary in the interests of justice.53 The Act also lists matrimonial causes and matters; lunacy and minor matters and proceedings involving the disclosure of a secret manufacturing process; See also: Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011), at p.4.54 [1994] 2 IR 481.55 Z v. DPP [1994] 2 IR 476 at p.486.56 [2001] 1 ILRM 54057 Microsoft Corporation v. Brightpoint Ireland Ltd [2001] 1 ILRM 540 at p.541 and 546.58 Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011), at p.4.

8

Examination No. 100366

It is submitted that in these rare examples of derogations the courts should regulate the

giving of such orders on the basis of a test of “strict necessity” .59 This test could

safeguard against the abuse of the principle of open justice by ensuring that

derogations are only granted, as the Neuberger Report suggests, when adhering to the

principle of open justice would frustrate the court’s ability to administer justice.60

Furthermore, a derogation should be at the absolute minimum threshold necessary to

ensure that justice is done and, with respect to this minimum, the court should have

special regard to what information can be justly disseminated into the public domain.61

(c) Return Dates and Duration

Further safeguarding can be achieved by the courts issuing a return date with the

injunction. In LNS (Terry) v. Persons Unknown62 Tugendhat J expressed concerns that,

Since service on the respondent is unlikely, it follows that no trial is likely to be

held. Unless a third party is prepared to take the risk in costs of applying to vary

this order, this interim application is likely to be the only occasion on which the

matter comes before the court.63

In other words, unless the organisation or person served with the injunction takes steps

to bring it back before the courts, the proceedings in such circumstances could continue

indefinitely thus transforming an interim into a permanent injunction.64 Given the

Buffham problem,65 which holds that interim and interlocutory injunctions do not bind

third parties upon the cessation of proceedings, this potential for permanency could

provide an incentive for claimants to prolong the injunction and not prosecute trail, it

also gives rise to the worry that a permanent form of secret justice could evolve66 and

that the litigation will “go to sleep indefinitely … and what is supposed to be a

temporary holding injunction becomes a substitute for a full and fair adjudication”.67

It is submitted that the courts should regulate these injunctions not only by imposing

return dates but also by actively managing these cases, in particular, where the parties

to the injunction are “persons unknown” and the litigation, as such, is more likely to fall

into a state of hibernation.

59 The Neuberger Report at p.v.60 The Neuberger Report at p.8 [1.19].61 The Neuberger Report at p.iv62 [2010] 1 FCR 659. 63 LNS (Terry) v. Persons Unknown [2010] 1 FCR 659 at p.666-7 [20] and p.694 [134]ff. 64 The Neuberger Report at p.29 [2.32].65 Jockey Club v. Buffham [2003] Q.B. 462. See also: the Neuberger Report at p.29 [2.33].66 The Neuberger Report at p. 29-30 [2.32-2.34]. See: Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010), at p.135. See also: Goldsmith v. BCD [2011] EWHC 674 (QB).67 X & Y v. Persons Unknown [2007] EMLR 290 at [78] per Eady J.

9

Examination No. 100366

(d) Anonymity and Persons Unknown

Firstly, in re Ansbacher (Caymen) Ltd68, which involved the publication of the names of

clients of a company in a report drafted on the foot of an investigation pursuant to s.8 of

the Companies Act, 1990, McCracken J held that “to extend the right to privacy or the

right to a good name to anonymity in a court case could not possibly be said to be a

practicable way for the State to defend and vindicate these rights in the light of Article

34.1”.69 In Doe v. The Revenue Commissioners70 Clarke J held that the plaintiffs were

not entitled to bring proceedings under an assumed name and that the obligation that

justice, save in special and limited circumstances, be administered in public included an

obligation that all parts of the court process be available to the public which meant that

the identity of the parties to the proceedings must prima facie be made public.71 Kirwan

argues that this principled approach to the question of anonymity tends “to mitigate

against the granting of anonymised injunctions in this jurisdiction”.72

(e) Balancing Rights

Finally, as super and anonymised injunctions normally concern the protection of private

or confidential information pending trial they necessarily engage both Article 8 and

Article 10 Convention rights. It is thus important for the courts to develop a coherent

methodology for balancing privacy rights against the countervailing right to freedom of

expression and open justice. Daly has cogently argued that a lack of judicial

commitment to free speech in this jurisdiction is evinced by the “absence of any

coherent judicial philosophy regarding free speech, which has produced a body of case

law that is not only weak, but highly inconsistent”.73 In order to overcome these

difficulties it is submitted that the courts adapt and adopt the “ultimate balancing test”74

which was approved by Eady J in the context of super and anonymised injunctions in

Donald v. Ntuli.75 This test is a further means by which the courts can regulate the

granting of super and anonymised injunctions and it is clear from the first limb of the

test that it is designed to safeguard defendants and the public by giving equal weight to

both rights. Where the values under the two Articles are in conflict the test focuses on

the comparative importance of the specific rights being claimed in the individual case

and examines the justifications for interfering with or restricting each right. The final

limb applies a test of proportionality.76

68 [2002] 2 IR 517.69 Ansbacher (Caymen) Ltd [2002] 2 IR 517.70 [2008] IEHC 5.71 Doe v. The Revenue Commissioners [2008] IEHC 5 at p.339 [33].72 Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011), at p.6.73 Daly, “Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution (2009) 1 DULJ 228-262 at p.22874 In Re: S (a child)(Identification: Restrictions on Publication) [2005] 1 AC 593, at paragraph 17, Lord Steyn extracted four propositions from Campbell v. MGN Ltd [2004] 2 AC 457.75 [2010] EWCA Civ 1276 at [11].76 The test is set out in Donald v. Ntuli [2010] EWCA Civ 1276 at [11].

10

Examination No. 100366

3. Conclusion

At bottom, the modern age of Twitter and Facebook essentially turns each individual

into a publisher with a potentially unrestricted global audience. Given that Twitter and

Facebook vigorously protect the anonymity of its users coupled with the fact that the

right to freedom of expression and the principle of open justice are of fundamental

importance to a free and open society, it is submitted that even if super and anonymised

injunction are possible in this jurisdiction they should, at least at present, be avoided.

There can be no doubt that the dignity and respect that the courts command is capable

of being undermined by futile attempts to impose silence on a information conveying

medium which routes itself into the hands of billions of individuals all over the planet.

And although it appears that the legal machinery certainly exists for regulating super

and anonymised injunctions in a just manner, for protecting the public and for balancing

the inherent rights at play it is certainly the case that if the injunction itself fails

completely as a legal remedy these tools become redundant. Until technology and the

law become bedfellows and the former equips the latter (or itself) with the means to

render an injunction effective on-line, derogations from open justice will only harm the

legal system by their continuing failure to actually derogate.

Bibliography

Daly, ‘Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of

the Constitution’(2009) 1 Dublin University Law Journal 228-262.

Delaney, Equity and the Law of Trusts in Ireland (2011) Round Hall, Dublin.

Eady, ‘Injunctions and the Protection of Privacy’ (2010) 29 Civil Justice Quarterly 4, 411-427.

Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011) 30 Irish Law Times 1: 223-230.

Neuberger M.R., Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised

Injunctions and Open Justice, (May 2011).

Petit, Equity and the Law of Trusts (2012) Oxford University Press, Oxford.

Smartt, “Twitter undermines super injunctions,” Communications Law (2011) 16(4): 135-139

Zukerman, ‘Common law Repelling Super Injunctions, Limiting Anonymity and Banning Trial

by Stealth’ (2011) 30 Civil Justice Quarterly 4.

Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010) 29

Civil Justice Quarterly 2, 131-138.

11