In Depth

What is an injunction?

Ban on naming of mystery #MeToo businessman has renewed interest in the controversial court orders

A row over a court order barring the identification of a well-known businessman accused of sexual harassment and racial abuse of staff - since revealed as Sir Philip Green, after Lord Hain invoked parliamentary privilege to flout the order - has brought the use of injunctions back into the spotlight.

The Court of Appeal ruling, against The Daily Telegraph, has also sparked wider concern about the use of so-called gagging orders in commercial contracts, with Prime Minister Theresa May saying employers were using non-disclosure agreements (NDAs) “unethically” to conceal “abhorrent” sexual harassment in the workplace.

But how do injunctions work and why are they controversial?

What is an injunction?

An injunction is an official order given by a court preventing the publication or dissemination of information about a particular subject.

Injunctions can be sought by famous figures to prevent newspapers reporting on activities that might show them in a negative light, such as an extramarital affair, if the applicant can convince the court that the damage they or their families would suffer as a result outweighs any public interest in the matter.

These legal orders have proved controversial, with news organisations arguing that they threaten free speech and the freedom of the press.

In 2011, there was a legal and public backlash when it emerged that several high-profile celebrities had sought “super-injunctions”, which forbid publications from even revealing that they have been gagged. 

What’s the penalty for breaking an injunction?

Breaking an injunction could mean the offending party being found guilty of contempt of court, which may result in a prison sentence, fine or seizure of assets.

Why are they controversial?

In simple terms, an injunction is a remedy that an individual or company may obtain against a party who breaches an NDA, also known as a confidentiality agreement, to prevent them from doing something, Josephine Van Lierop, an employment lawyer at law firm Slater Gordon told the i newspaper

In the current case of the so-called #MeToo businessman - a reference to the global movement against the mistreatment of women and others by employers - an injunction “has been obtained from the Court of Appeal preventing the Telegraph from revealing details of the alleged sexual harassment and racial abuse in circumstances where [the businessman] had already agreed NDAs in respect of these issues”, Lierop explains. 

“So this judgment is about press freedom and striking the balance between commercial contracts and freedom of speech”, she adds. “The court is saying that if there is going to be limits placed on the use of NDAs, guidance needs to be given by Parliament with a change of law - which we understand is being considered.”

In an article published in the Telegraph, Geoffrey Robertson QC claims the granting of the injunction was inevitable, warning: “Commercial lawyers who later become judges may have an instinctive preference for freedom of contract over freedom of speech, as if asked to balance hard cash against hot air. Thus free speech becomes expensive speech.”

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