‚*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?

Examination No. 100366


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 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 confusion 6 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,

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‛.


Examination No. 100366

because they are seeking to protect information from publication, Article 10 will also be engaged.7 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 rights 8 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 superinjunction 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
The Neuberger Report, at p.17. 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.29
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Examination No. 100366

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 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 nonuniform 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 9 th 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
Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010) CJQ, vol.29 at p.134. 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/0/70393786-7a82-11e0-876200144feabdc0.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)


Examination No. 100366

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 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 privilege 27 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

Smartt, ‚Twitter undermines super injunctions,‛ Communications Law (2011), at p.136. 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).
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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 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 c ourt 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

House of Commons, 23rd May 2011, Column 638. Available online at: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110523/debtext/1105230001.htm#1105237000004 (17/12/12). 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.134 40 Zukerman, ‘Super Injunctions – Curiosity Suppressants Undermine the Rule of Law’ (2010), at p.134. 41 ‚Twitter and the mystery footballer,‛ by Dan Sabbagh, 20 th 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.


Examination No. 100366

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 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
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 Trial by 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.


Examination No. 100366

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 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 Courts 49 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 applicatio ns 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
[1979] AC 440 at p.449-450. 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 540
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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 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 evolve 66

Microsoft Corporation v. Brightpoint Ireland Ltd [2001] 1 ILRM 540 at p.541 and 546. Kirwan, ‘Footballers, Lawyers and the Super Injunction’ (2011) , at p.4. 59 The Neuberger Report at p.v. 60 The Neuberger Report at p.8 [1.19]. 61 The Neuberger Report at p.iv 62 [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).
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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 i nto a state of hibernation. (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

X & Y v. Persons Unknown [2007] EMLR 290 at [78] per Eady J. [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.228
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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 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.

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].


Examination No. 100366


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.