The committee charged with reviewing the use of superinjunctions has called for the media to have advance notice of privacy orders and for the Government to monitor the use of injunctions.

Pulling back from recommending major changes in its 100-page report, the committee chaired by the Master of the Rolls Lord Neuberger today (20 May) argued that the current regime for granting injunctions is working effectively.

The report includes draft guidance setting out the procedure to be followed when applying for private or confidential information to be protected by an injunction, which is intended to ensure the media are informed in advance of applications for non-disclosure orders. Such a move would make it easier for the media to contest privacy applications.

The committee's findings come after weeks of sustained controversy surrounding the use of privacy-related injunctions, a practice that has been strongly criticised in the media.

Neuberger commented: "Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And, when it is ordered, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment."

The report states that where injunctions are granted "they should be kept under review by the court" and cannot "become in practice permanent".

The committee did warn that the legal position over injunctions being discussed under Parliamentary privilege and then reported in the media remains unclear. The report states that superinjunctions can not restrict Parliamentary debate but Neuberger warned that reports of Parliamentary proceedings that tried to contravene injunctions may be in contempt of court.

The committee, which was set up in April last year, rejected the need for specialist judges to hear injunctions as "neither justifiable nor practicable" as well as rejecting the case for a fast-track or compulsory appeal process.

Neuberger has recommended that a data collection system be set up by the Ministry of Justice with results published annually, in an effort to keep track of the number of applications for injunctions.

The report highlights the relative rarity of superinjunctions, which restrict even the publication of their existence. Since the superinjunction handed to Chelsea footballer John Terry last January, the committee has said it is only aware of two further superinjunctions being granted.

The report does conclude there were "justifiable concerns regarding excessive use of injunctions but states that these "concerns have now been addressed", noting that superinjunctions are now granted only very rarely and often only for "very short periods". The committee did note, however, that there had been an increase in the number of anonymised injunctions, in which the existence of the court order and the nature of the matter are disclosed.

Welcoming the report, Lord Chief Justice Lord Judge responded to media claims that judges have been independently constructing a privacy law. He commented: "The development of privacy rights since 2000 was an inevitable consequence of the enactment of the Human Rights Act 1998 and the incorporation of the European Court Convention of Human Rights, and in particular article 8 of the Convention, into domestic law. That consequence was indeed clearly explained to Parliament before the Human Rights Act was enacted."

The committee's members were: Desmond Browne QC; Rod Christie-Miller, chief executive of Schillings; Alasdair Pepper, partner at Carter-Ruck; Ministry of Justice head of legal policy Michelle Dyson; Lord Justice Moore-Bick; Mr Justice Tugendhat; Marcus Partington, deputy secretary/group legal director at Trinity Mirror; Guardian News & Media director of editorial legal services Gill Phillips; and John Sorabji, barrister, legal secretary to the Master of the Rolls.

Wider impact

The report comes against a backdrop of an increasingly heated debate over the role of injunctions, media ethics and calls for statutory reform of privacy law.

The use of injunctions first became politically charged in the wake of a superinjunction granted in 2009 to the oil company Trafigura banning publication of a confidential report. Subsequent controversies quickly shifted to privacy cases, many involving wealthy and famous individuals obtaining injunctions with anonymity orders to prevent publication of stories involving their personal lives.

Sections of the media seized on these orders arguing that judges were developing a privacy law by the back door at the expense of free speech. The judiciary and most media lawyers responded that such developments were a direct result of the 1998 Human Rights Act, which introduced the right to respect for private family life, a move that was widely cited as creating a right to privacy as the Act passed through Parliament.

Attempts of a number of users of the microblogging site Twitter to breach the terms of injunctions by naming individuals that had obtained privacy orders drew further attention and raised questions over whether such orders could be enforced against social media sites.

Injunctions have this week once again been in the headlines, with Mr Justice Eady on Monday (16 May) refusing to lift an injunction preventing former Big Brother contestant Imogen Thomas from naming a professional footballer that she allegedly had a sexual relationship with. On Thursday (19 May), a Liberal Democrat peer used Parliamentary privilege to reveal details about an injunction obtained by ex-Royal Bank of Scotland head Sir Fred Goodwin in the House of Lords.

In a separate development, it emerged today that an individual has launched a High Court action against Twitter and a number of its users in relation to the reporting of an injunction. The case – listed as CTB v Twitter Inc and Persons Unknown, case number HQ11X01814 – was filed in the Queen's Bench Division of the High Court on Wednesday (18 May), according to a report on Bloomberg.

Schillings has been instructed for the claimant. The case is apparently one of the first attempts to pursue a civil action in the English courts against the popular social media site, though details of the claim are unclear. CTB was the same name used by the professional footballer who obtained an injunction against The Sun and Imogen Thomas with Schillings also acting for the claimant.

Attention will now focus on whether the Government will decide to introduce primary legislation on privacy, a move several ministers have hinted could happen in comments made in recent weeks. A spokesperson for Prime Minster David Cameron, who last month expressed unease about the development by judges of privacy law, said Neuberger's report was "very useful… and we will consider it carefully".

Views from the profession:

"Lord Neuberger's recommendations are to be welcomed, not only for clarifying that, in truth, superinjunctions are even rarer beasts than libel tourists, but for the further guidance to the profession on procedure. How I laughed when almost immediately I saw that the report had been condemned by an MP as an "attempt to gag Westminster reporting". This is, of course, as much nonsense as the allegation that Trafigura or Carter-Ruck had tried to do the same [Carter-Ruck represented the company in obtaining its 2009 superinjunction]. It is a great shame that the facts get so distorted in the important public debate we should be having on the extent of our privacy laws".
Nigel Tait, partner, Carter-Ruck

adam-wagner1"Lord Neuberger's report, on an initial reading, is characteristically balanced and practical. It emphasises that judges did not invent privacy law, but rather that it was the Human Rights Act, as passed by Parliament in 1998. It recommends practical ways in which fears of open-ended privacy injunctions can be allayed, although it goes nowhere near recommending that judges' discretion to grant such orders should be constrained. The report will hopefully deflate some of the media hype surrounding injunctions, although it is unlikely to hold back the wider debate on privacy law. Perhaps the Bill of Rights Committee, due to report by the end of 2012, will have more to say on this super-hot but probably overinflated topic."
Adam Wagner, barrister, One Crown Office Row, writing for the UK Human Rights Blog.

"Neuberger's starting point is that justice should be seen to be done, not concealed behind closed doors. However, he accepts that exceptions can be made where anonymity orders or super injunctions may still be appropriate in the interests of justice. In those circumstances, he proposes introducing a recording system to enable monitoring the frequency of such orders to give comfort that they will be the exception rather than the norm."
Geoff Steward, head of contentious intellectual property, Macfarlanes

"These are sensible proposals to fine-tune and clarify the processes for the judges to balance the competing interests of privacy and free speech; but, despite the virulent press campaign over the past year or so, this is not radical reform. A fascinating issue is the tension between parliament and the courts. Clearly parliament is supreme and its privilege has to be protected; but when is it an abuse of that privilege to use it to publicise injuncted matters not as part of parliamentary business but specifically to undermine the court order concerned – because you don't like the court order and think the judge was wrong? It is the court, not parliament, certainly not the press, that must be allowed to balance the issues. Parliament should support, not undermine, the courts."
Paul Lomas, litigation partner, Freshfields Bruckhaus Deringer

"The conclusions of the committee led by Lord Neuberger will do little to dampen public anger about superinjunctions which is centred on the fact that they appear to be the preserve of the rich. The reality of course is that superinjunctions are just an example of a much bigger issue – civil litigation as a whole is not for people without substantial wealth. Far too few people have proper access to justice."
Clive Zietman, head of commercial litigation, Stewarts Law

"Lord Neuberger's committee has struck a sensible balance between the privacy rights of the individual and the media's right to freedom of expression. It provides an interesting counterpoint to the self-serving media frenzy in disclosing that only three so-called superinjunctions were granted in 2010. There is of course nothing new about anonymity orders. It must be obvious to most sane people, even if not to sections of the press, that an anonymity order is often necessary in a privacy case because disclosure of the fact that an individual has been granted a privacy injunction would otherwise defeat the very purpose of the order."
David Engel, head of reputation protection, Addleshaw Goddard

"Neuberger's report highlights the fact that the role of the Judge is to interpret the Human Rights Act in accordance with the facts as they arise in each case. This is a role that the Judges' already have great experience in dealing with and therefore I don't anticipate that the report will lead to any great changes in the way they carry out this process. The issues concerning parliament may lead to guidance for MPs on debating privacy issues in the House of Commons. We may also see more guidance on the internet and social media, which is clearly an area of concern but is proving a difficult arena to control."
Joby Davies, commercial litigation partner, Berwin Leighton Paisner

Click here to read the full report, and click here for the full transcript of Friday's press conference.