The superinjunction, that tool of the UK court system so beloved of large corporations and wealthy or high-profile individuals, is increasingly the best way to publicise a case that would otherwise attract minimal attention.

On 3 March, an individual known in court documents as ZAM took the superinjunction into new territory in the British High Court when he obtained one in relation to a libel case. Justice Tugendhat granted an extraordinary order preventing the revelation of either the identity of ZAM or the nature of the case in which he was a plaintiff. The case decision thundered:

Any person who knows of this order and disobeys this order or does anything which helps or permits any person to whom this order applies to breach the terms of this order may be held to be in contempt of court and may be imprisoned, fined or have their assets seized.

The Informm blog (the “international forum for responsible media blog”), wrote about the judgment shortly after Tugendhat issued it, nodding approvingly of its savage terms but noting it represented a new development in libel law. Yesterday, The Guardian belatedly ran a piece on it, including references to some subsequent developments.

Ever since the Trafigura case, when a superinjunction backfired on a company desperate to avoid coverage of its handling of toxic waste and their attack dog lawyers, these orders have attracted increasing attention from UK parliamentarians. Earlier this month, disgraced banker Sir Fred Goodwin (“Fred the Shred”, in tabloid parlance) was outed by an MP using Parliamentary privilege as having obtained a superinjunction banning the media from identifying him as a banker.

The claims contested by ZAM are rather more serious than being called a banker. They involve claims of rorting a trust fund and of a s-xual offence.

The only problem is, superinjunctions are now a red rag to a bull online. As soon as word of them is leaked, there’s a scramble to breach them using the internet. And that, predictably, is what has happened with ZAM. Allegedly because legal documents in the case were accidentally emailed to a party outside the UK (a likely story, but that’s the claim), documents relevant to the case appeared online in the days following the granting of the superinjunction. They plainly revolve around a family dispute over a trust fund, established in a tax haven, and claims that money has been rorted or mismanaged.

Following the very-carefully worded article in The Guardian, which virtually amounted to a series of clues as to how to track down the documents, interest in the case spiked dramatically and the URL for the documents was widely tweeted, albeit with UK tweeters conspicuously quiet about it.

The documents and The Guardian article suggest that the superinjunction was obtained by the Hon Charles Martyn-Hemphill, a British financier and relative by marriage of the family concerned (Martyn-Hemphill’s Debrett’s entry is here); a number of allegations in the documents relate to him (and are the subject of his libel action); others relate to a Guernsey trust manager, Peter Ferbrache.

Martyn-Hemphill may well be the innocent victim of a family quarrel turned nasty. Certainly, no evidence is available to back up any of the very damaging claims about him. But this superinjunction, particularly given its legal novelty, is now an example of the Streisand Effect, in which efforts to use legal means to silence critics serve only to draw attention to what they have to say. Absent a superinjunction, there wouldn’t be the slightest interest in the case.

It’s also yet another example of how lawyers, like the ever-growing list of other grumpy former gatekeepers, still haven’t worked out that their efforts to control information are swimming against the historical tide of connectedness online.

Peter Fray

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