WikiLeaks’ revelation of a Victorian Court gag order recalls that the overuse of such orders can be defeated by the threat of online exposure.
The penchant of Victorian courts for throwing suppression orders around like confetti came unstuck overnight with WikiLeaks publishing an injunction by the Victorian Supreme Court. Victorian courts have a history of being willing to issue gag orders.
The revelation is reminiscent of the running battle between sites like WikiLeaks, social media, British MPs and UK courts up until 2011. Superinjunctions developed as a legal manoeuvre exploiting the British Human Right Act 1998, which established a right to privacy binding on government bodies, and were frequently used by celebrities anxious to prevent the feral UK tabloids from revealing private information. However, large companies began using them as well, as a superinjunction prevented even the reporting of the existence of an injunction. WikiLeaks was one of the organisations to out the multinational company Trafigura, which had used a superinjunction to prevent mainstream revelations of its dumping of toxic waste in Africa. London law firm Carter-Ruck became notorious for its use of superinjunctions, but badly overplayed its hand on Trafigura when it tried to use them to ban reporting of parliamentary questions about Trafigura, leading to a social media backlash.
Carter-Ruck was also humiliated when its efforts to sue Twitter on behalf of Premier League philanderer Ryan Giggs for breach of a superinjunction led to a Twitter frenzy about Giggs and former lover Imogen Thomas. Liberal Democrat MP John Hemming, who had campaigned against superinjunctions, then named him in Parliament. At one point, a British court issued what was dubbed a “hyperinjunction” which prevented a person from revealing any information about a legal case to anyone at all, privately or publicly.
However, the use of superinjunctions in the UK has now fallen dramatically — in fact, virtually to zero — and in the view of one UK lawyer, directly as a result of the likelihood of online exposure. The Victorian order isn’t quite a superinjunction, but it is sweeping nonetheless, and identifying the individuals it refers to is prohibited. And the same Streisand Effect is at work, particularly given the casual invocation of national security as the basis for the injunction.
The success of WikiLeaks, online activists and social media in making UK superinjunctions so dangerous that potential users have shied away from using them suggests that, if Victorian courts won’t stop infantilising the population by insisting on determining it can and can’t know, potential users of gag orders might work out that injunctions can be more trouble than they’re worth.