Gagging Orders: Everything You Need to Know

What are gagging orders?

A gagging order, or non-disclosure order, is a type of injunction used to protect the someone’s right to privacy and confidentiality. It is issued by the court, usually on an interim basis pending a full hearing of the legal and factual issues, to restrict the publication and dissemination of private or confidential information about the subject of that order.

The term ‘gagging order’ may also refer to private use, for example an employment settlement agreement to prevent a former employee from ‘going public’ on an issue or to prevent trade secrets being leaked.

Gagging orders restrict the defendant’s right to freedom of expression through prohibiting the disclosure of the information in question. However, injunctive relief will not usually be granted to restrict the disclosure of information already in the public domain, not unless further publication could still be intrusive or otherwise damaging to the claimant.

The term ‘gagging order’ may also refer to private use, for example an employment settlement agreement to prevent a former employee from ‘going public’ on an issue or to prevent trade secrets being leaked.

Why are gagging orders used?

Gagging orders are often used by high-profile figures, like celebrities and politicians, to prevent information being made public about their personal lives, such as the details of extra-marital affairs.

They are also commonly used in breach of confidence cases by individuals or businesses to restrain the publication or disclosure of commercially sensitive information, such as confidential hedge fund information or trade secrets.

A gagging order can be sought on an urgent basis, where there is good reason to believe that private and confidential information is about to be made public. While there are other available remedies to claimants in these types of cases, the law recognises that interim injunctive relief will often be the only remedy that has any real value to the claimant.

Typically, an infringement of privacy cannot ever be effectively compensated by a monetary award, where a gagging order against a journalist or media organisation, or a person seeking to leak the information to the press, will provide the best possible remedy against the threatened publication or disclosure of private and confidential information.

Can gagging orders be kept confidential?

Often, the subject of a gagging order will be a high-profile figure keen to avoid widespread negative press. Given the sensitive nature of these applications, hearings for injunctive relief to restrict the misuse of personal information about these individuals will usually be held in private. The claimant may also be granted anonymity under the terms of the order.

In some cases, the gagging order may even ban the reporting of the fact or existence of the order itself, and of the proceedings and the claimant’s interest in them. These types of gagging orders are commonly referred to as “super-injunctions”. A super-injunction is a gagging order which also restrains a person or organisation from publicising or disclosing to others the existence of the order and any legal proceedings, in this way prohibiting the media from printing any detail about the matter whatsoever.

In most cases, if proceedings are anonymised, and an injunction is granted by the court restraining disclosure or publication of the information in question, there is generally no reason in principle to also prohibit any report of the fact that an order has been made. Still, super-injunctions remain popular with high-profile claimants whose lawyers will typically cite the risk of jigsaw identification — even on bare facts, such as disclosure of the claimant’s profession, age or nationality — if no reporting restriction is imposed.

That said, potential claimants are not guaranteed the grant of reporting restrictions or even anonymity in privacy proceedings, where super-injunctions have been widely criticised in the media for fettering freedom of speech. This means that even successful applications for a gagging order may result in even greater publicity than would otherwise have been the case.

What is the current law on gagging orders?

There is no single overarching right to privacy under English law, although the principal cause of action relied on to protect privacy rights is misuse of private information.

The tort of misuse of private information which involves the wrongful publication, or threatened publication, of personal information, is often used by celebrities in privacy complaints.

For individuals and businesses looking to protect sensitive and confidential commercial information, the go-to cause of action is breach of confidence, although there is often overlap between the two.

In respect of either cause of action, such matters will fall to be determined with reference to the Human Rights Act 1998 (HRA), including the rights under the European Convention on Human Rights (ECHR) scheduled to it.

This will therefore involve consideration of the claimant’s right to privacy as set out under Article 8 of the ECHR, to be balanced against the defendant’s right to freedom of expression as guaranteed under Article 10. Further, when considering whether to grant any relief which, if allowed, might affect the exercise of the defendants’ right to freedom of expression, the court must have regard to section 12 of the HRA.

Under section 12(3), the court must not grant an interim injunction where Article 10 applies unless it is satisfied that the claimant is likely to establish at trial that publication should not be allowed. This makes the likelihood of success at a final hearing an essential part of the court’s consideration as to whether to make an interim order, where the applicant would need to satisfy the court that they would be more likely than not to obtain a permanent order.

Under section 12(4) of the Act, at either an interlocutory stage or final hearing, the court should have particular regard to the importance of the defendants’ Article 10 right to freedom of expression, although this is not to say that this right should be given preference over the claimants’ Article 8 right to privacy. Where material is journalistic in nature, the court must also have regard to the extent to which:

• the information has, or is about to, become available to the public, and
• it is, or would be, in the public interest for that information to be published.

Finally, the court must take into account the application of any relevant privacy code. In the context of newspapers and magazines that are regulated by the Independent Press Standards Organisation (IPSO), consideration must be given to the IPSO Editors’ Code of Practice, including a list of matters that are to be regarded as in the public interest. These include, for example, protecting the public from being misled by an action or statement of an individual or organisation, or raising or contributing to an important matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

Gagging orders & public interest defence

When considering the defence of public interest, the court is required to conduct a balancing exercise, not only between the claimant’s Article 8 right to privacy as against the defendants Article 10 right to freedom of expression, but also taking into account any legitimate public interest in the disclosure, or further disclosure, of the information in question.

While it is easier to justify the disclosure of private and confidential information when it pertains to matters of high public interest, like public safety, politics or corruption, there may also be a public interest in information which is far less serious, or akin to gossip.

In respect of journalistic articles which are essentially a ‘kiss and tell” celebrity story, this means disclosure may still be held to be in the public interest where this corrects a fake or misleading public image which the claimant has sought to advance. However, criticism of a person’s conduct should not be used as a pretext for invading their privacy by disclosing an alleged sexual infidelity which is of no real public interest in a legal sense.

Where it is clear that the threatened publication of personal information is simply to publish invasive stories, even if true, rather than contributing to important public debate, any public interest defence will almost certainly fail and a gagging order will be granted.

Can a gagging order be granted if the information is already in the public domain?

In the majority of cases involving misuse of private information or breach of confidence, it will be a defence to any claim for injunctive relief that the information in question is already in the public domain. However, in cases of private information, gagging orders may still be granted, or allowed to continue, even where the information in question has already been made public.

This could be, for example, where there has been internet coverage abroad, but further unrestricted publication of private information in the English media, even through repetition of private material, could result in additional intrusion for the claimant and his or her family.

It is important always to remember that the modern law of privacy is not concerned solely with information or secrets, but with intrusion. This means the courts can still intervene, even where a secret has already been outed. In some instances, the fact that a claimant has been repeatedly named on the internet will only serve to confirm that protection is required from further intrusion into their private and family life.

How do you apply for a gagging order

To apply for a gagging order the claimant will need to submit an application for interim injunctive relief to restrain the publication and disclosure of private or confidential information. This application must be supported by evidence, legal argument and a draft order, together with a claim form where relief is sought before commencement of a claim.

An application for a gagging order can be made on either a ‘with’ or ‘without notice’ basis, although the court will only grant an order on a without notice basis where there are compelling reasons why the defendant(s) should not be notified. This could include, for example, where there is a real prospect that the defendant(s) would take steps to defeat the order’s purpose. If the claimant makes an application without giving notice, evidence must be provided as to the reasons for this.

In cases where secrecy is not essential, notice of the application will need to be given to the defendant(s), as well as any non-parties who are to be served with the order where those non-parties have an existing interest in the information to be protected by the injunction.

What if a gagging order is breached?

Where a gagging order is granted by the courts but it is breached, the offending party may be found guilty of contempt of court. This is a very serious offence that can result in a fine, seizure of assets or even a term of imprisonment. The order itself will contain a penal notice.

The penal notice should also make clear the effect it may have on non-parties who know of the order under the Spycatcher principle. This principle means that anyone who knows of an interim injunction preventing disclosure of confidential information, and discloses that information, is liable for contempt of court. However, a gagging order will only bind non-parties who are notified of it while it is in force.

Where an irrevocable undertaking is given to the court by a third party, breach of the undertaking may also amount to contempt of court.

Where are we now with gagging orders?

Gagging orders, regardless of reporting restrictions, are likely to continue to attract the attention of the media, not least in the context of legitimate debate on the value of such injunctions in the internet age. Still, given that the tort of misuse of private information is still in its’ relative infancy, it is yet to be seen what new developments are on the horizon.

In the context of Brexit it seems unlikely that the UK leaving the EU will impact either the HRA or the incorporation of the ECHR provided for by the HRA. The ECHR is an international treaty that protects the human rights of people in countries that belong to the Council of Europe. This is separate to the EU, where the UK continues to be a member.

However, given that gagging orders are often sought by high-profile figures, with the resources to argue their case throughout the appellate court system, we may yet see further developments as to how the courts will address the competing interests of the individual’s right to privacy and the right to freedom of expression often vociferously argued by the press.

Can gagging orders be used to prevent whistleblowing?

As with non-disclosure orders frequently sought by high-profile figures to protect their privacy, employers will often use non-disclosure agreements (NDAs) to prevent employees from going public or instigating legal proceedings in respect of wrongdoing in the workplace and whistleblowing.

NDAs are widely used across various UK industries, including film, advertising, finance, education and the health service, not only to protect sensitive commercial information or trade secrets, but also to prevent the spreading of anything likely to have significant financial implications or to damage an organisation’s reputation.

NDAs, or “workplace gagging orders”, are contractual in nature, where an employee is often paid a lump sum to agree to keep quiet about a workplace dispute or wrongdoing. Unlike non-disclosure orders, the basis of an NDA is by agreement, rather than ordered by the court.

Still, as with celebrity gagging orders, workplace gagging orders frequently make headlines news, especially in the context of allegations of sexual harassment and bullying, where unscrupulous employers have sought to misuse NDAs to silence employees and protect serial perpetrators of misconduct. In this way, both court-ordered and contractually agreed gagging orders give rise to ongoing debate about how and when these orders should be used.

What does seem clear is that all types of gagging orders, by reason of their secretive nature alone, will continue to attract the attention of the press, the public and the judiciary for the foreseeable future.

Gagging orders FAQ’s

How do you get a gagging order?

To apply for a gagging order, also known as a non-disclosure order, an application must be made to the court for an interim injunction to restrict the publication and dissemination of private or confidential information. The grant of an order will prevent the defendant(s) from publishing or disclosing to any other person the information referred to in the order.

Why are gagging orders issued?

Gagging orders are issued by the court to protect the claimant’s right to privacy. These types of order are often sought by celebrities to prevent private information, such as details of an extra-marital affair, from being made public. They can also used by individuals or businesses to restrain the publication of commercially sensitive information.

What happens if you disobey a gagging order?

If you disobey a court-ordered gagging order you could be found to be in contempt of court. This is a very serious offence that can result in a fine, seizure of assets or even imprisonment. Equally, if you breach a contractually-agreed gagging order at work, the consequences can be significant, including payment of damages to your employer for breach of contract.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.