Secret Super-Injunctions: Are They Suited to the New Zealand Legal System?

Abstract

Super-injunctions prohibit the publication of private information and the existence of the injunction proceedings themselves. Following the unsuccessful application by John Terry in LNS v Persons Unknown, the media in the United Kingdom was in a frenzied panic. Allegations of secret justice and judicial censorship of the press were aplenty. While they have not been directly addressed in New Zealand, judges may be inclined to introduce super-injunctions as a remedy for invasions of privacy. I insist that super-injunctions are undesirable. They severely restrict the right to freedom of expression and principle of open justice – both fundamental constitutional values. I explore arguments advanced by Samuel Warren, Louis Brandeis and Ruth Gavison in favour of privacy, and Alexander Meiklejohn and Thomas Emerson in favour of freedom of expression, followed by two justifications for open justice: the search for truth and judicial accountability. I consider the torts protecting privacy in the United Kingdom and New Zealand and question whether super-injunctions align with the importance that the New Zealand legal environment accords to these values. I conclude that super-injunctions unjustifiably derogate from open justice and freedom of expression. Although privacy is an important dignitary human right, it is not absolute. A balance must be struck between competing rights in liberal democracies. Freedom of expression and open justice should only be derogated from in exceptional circumstances. Super-injunctions are not suited to New Zealand, principally due to the deliberate exclusion of the right to privacy from the New Zealand Bill of Rights Act 1990. I advocate that existing remedies and various complaints procedures provide sufficient protection.