In Ministry of Defence v Global Media Entertainment Ltd and Ors, it can now be reported that the British government obtained a super-injunction which lasted nearly two years preventing the disclosure: (i) that a dataset had been leaked containing the personal information and contact details of nearly 19,000 persons who applied for relocation to the UK from Afghanistan following the Taliban coup in 2021; and (ii) of the very existence of the injunction itself.
The super-injunction was granted and continued because it was thought that if the Taliban learned about the existence of the dataset it was likely that they would acquire it to identify those who had applied for relocation and target them for extra-judicial killing or torture.
However, on 15 July the super-injunction was discharged following a review commissioned by the Ministry of Defence (MoD). This concluded that the Taliban likely already possess the key information in the dataset; that it is unlikely that individuals would be targeted simply because of their work for the UK or allied governments or for the former government of Afghanistan; and that the acquisition of the dataset is accordingly unlikely substantially to raise the risk faced by the individuals whose data it includes.
What is a super-injunction?
A super-injunction differs from a normal injunction as the very fact that the injunction has been made cannot be reported. This has an obvious chilling effect on free speech and will only be granted in very rare cases. The consequences of breaching an injunction are severe: breach is considered a contempt of court, punishable by fine and/or imprisonment. Super-injunctions were prominent in the late 2000s, most notably sought to protect the private lives of celebrities.
The injunction in this case was made contra mundum (against the world) on application by the MoD, meaning that any third parties who are aware of the injunction are subject to it, even if they are not named on the order itself.
What sets this case apart?
This is the first super-injunction brought by the British government. It prevented public and parliamentary scrutiny of the decision to spend up to £7bn of taxpayers’ money. The length of time the injunction remained in place – nearly two years – was extraordinary. Typically, super-injunctions are granted for short periods as they are intended to be urgent, interim measures. This super-injunction is thought to be the longest-lasting order of its kind.
Decisions
On 2 September 2023, when the super-injunction was originally made, the High Court judge granted what he acknowledged was an ‘exceptional injunction’. He was persuaded that this was necessary because: (i) the confidentiality of the data remained intact (despite the breach); (ii) while the injunction would seriously impact freedom of expression on matters of public interest, the impact was justified given the exceptional circumstances and grave risk to the individuals on the list; and (iii) it was possible that the injunction could be lifted at a later date (as indeed has happened) so that the impact to freedom of expression could ultimately be limited to delay.
There followed a series of four judgments handed down by the High Court judge, together with a judgment of the Court of Appeal.
While the injunction was continued in the first and second judgments following the initial granting of the super-injunction, it was ordered to be discharged by way of the third judgment. In this third judgment, the judge held that if the Taliban already had the dataset, they may currently be using it to target people whose data is included in it. If so, the continuation of the super-injunction might be harming people by depriving them of the opportunity to take protective action.
Even if the Taliban did not have the dataset, the judge said that on the MoD’s own assessment, they were likely to acquire it in the next few months or years; and those who had not been relocated at that point would be better off learning of its existence from the MoD than from a ‘knock on the door by the Taliban’. Moreover, the judge considered that the sheer scale of the decision-making, both in terms of the numbers involved and the financial cost, meant that further secrecy was not feasible and was objectionable in principle.
However, the Court of Appeal disagreed and reinstated the injunction on appeal by the MoD. It held that the High Court judge had made two main errors:
(i) the judge had failed to compare what would happen if the injunction were discharged with what would happen if it were continued. The Court of Appeal thought that it would be a ‘virtual certainty’ that the Taliban would obtain the dataset if the injunction were to be discharged; and
(ii) the judge had made an error in relation to his finding of an adverse effect on those who had not been relocated if the injunction were to remain in place.
The Court of Appeal concluded that there was no material change from the continuation position maintained in the first and second judgments, and that the super-injunction should be continued, subject to periodic review by the High Court judge at least every three months. The Court of Appeal also noted that ‘the usefulness of the dataset to hostile actors is likely to reduce over time’.
The fourth judgment of the High Court judge, dated 15 July, eventually discharged the super-injunction following a review by the MoD and reassessment of the risk. That review was conducted in the spring by a retired civil servant, Paul Rimmer, who had not been involved in any of the decisions under review.
The review concluded that the acquisition of the dataset by the Taliban is ‘unlikely to substantially change an individual’s existing exposure given the volume of data already available’. It also concluded that ‘it appears unlikely that merely being on the dataset would be grounds for targeting’, and it is ‘therefore also unlikely that family members – immediate or more distant – will be targeted simply because the “principal” appears in the… dataset’. The judge determined that those conclusions fundamentally undermined the evidential basis on which the injunction was granted and continued, ordering it to be finally discharged.
Comment
This case is at stark odds with the traditional territory of super-injunctions being used to protect a celebrity’s right to privacy. The case was rightly described by the judge as ‘unprecedented’ and has had very significant implications for free speech for an extraordinarily lengthy period of time. It appears to be the first time that a contra mundum super-injunction has ever been granted.
The judge’s closing comments are particularly pertinent and a credit to all media and journalists involved in the case: ‘Those involved in this long-running and unprecedented case have known throughout that there would come a time when the super-injunction could no longer be maintained. I decided that this point had been reached over a year ago. The Court of Appeal disagreed. For the last year, my assumption has been that the injunction might fall to be discharged when the information protected by it leaked into the public domain through the media in the UK or abroad. The parties have updated the court on a continual basis about the extent to which knowledge of the underlying matters has spread. It is one of the many remarkable features of the litigation – and very much to the credit of the media organisations and individual journalists involved – that there has been no mention in the media of the underlying matters while the super-injunction remained in force.’
Elizabeth Wiggin is a senior associate at Wiggin, London
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