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If you’ve heard of a gagging order before but are unclear on what exactly it is, then you’re in the right place. In this article, our litigation solicitors answer a number of questions on the subject and tell you everything you need to know!
If you have any queries regarding a gagging order, contact us directly on 020 3007 5500.
What is a gagging order?
A gagging order upholds the privacy of a person or company by prohibiting the exposure of confidential information.
The order classifies as a publication injunction. It is also referred to as a ‘gag order’ or ‘non-disclosure order.’
What is an injunction?
An injunction prevents a person from doing a specific act or requires them to do something. Notably, a gagging order is a form of publication injunction. Some examples of other injunctions include non-molestation or occupation orders.
There are also such things as super injunctions. They work the same as a gagging order. However, it also prohibits publicising the existence of the order itself.
In 2011, the UK saw several super injunctions used by celebrities to prohibit media from producing stories about them.
For more information, visit our blog page on injunctions.
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Why are gagging orders used?
Prominent users of gagging orders are celebrities or other high-profile figures. Here, the order is mainly for secrets surrounding marital affairs or flings with other well-known figures.
Commercially, businesses utilise gagging orders to prevent secrets from becoming public knowledge. These include things that are kept secret from their competition, such as plans or prototypes.
An employer may use a gagging order in conjunction with a settlement agreement. This is to keep the details surrounding the departure of an employee secret. Usually, going down this route is an attempt to avoid large tribunal or legal fees.
Police witness or victim protection will utilise a gagging order too. Similarly, any information that could endanger a person if made public is subject to the order.
Are gagging orders constitutional?
The legality of gagging orders has been subject to debate for many years. Specifically, people argue that injunctions like these tread a fine line between being legal and infringing the right to free speech.
There have been many controversies surrounding freedom of speech and freedom of press in regards to publication injunctions. However, gagging orders are of course legal.
The court will scrutinise an application to make sure it does not affect the rights of anyone involved.
How do I apply for a gagging order?
To apply for a gagging order, you must apply for an interim injunction from the court. This will grant you interim relief to prevent any information from being publicised until a final court ruling.
An application submittal goes on a ‘with’ or ‘without’ notice basis. Normally, the defendant receives notice of the order, alongside any other parties that have an existing interest in the information. This essentially informs them about the existence of the order.
On the other hand, a ‘without’ notice is only served in a few reserved circumstances. Namely, this applies to scenarios where the defendant is likely to disclose the information soon. In cases such as this, the application must provide strong evidence as to why they require a ‘without’ notice.
When submitting an application to the court, the criteria is heavily examined to ensure it doesn’t infringe on any human rights. Therefore, it is important that the court ensures that the Human Rights Act 1998 is abided.
When assessing the application, the court takes into account:
- The actual material you wish to keep private
- The current or potential availability of the material to the wider public
- Public interest in relation to the material
In essence, the court must balance the interests of the general public with the privacy of the applicant. However, the court will hear evidence on how publicity will affect the applicant. If the court deems that this outweighs public interest, then they will grant the gagging order.
Remember...
An interim injunction is a temporary order sought during legal proceedings. It acts as a provisional measure to prevent the opposing party from publicising the information you are seeking to keep private.
Can you apply a gagging order to information that is already public?
The court usually does not approve an interim injunction for knowledge in the public domain.
Examples of public information that could be subject to a gagging order include:
- Internet publication abroad that has not yet been covered by the English or Welsh media but by other countries.
- Continual intrusion on a claimant’s work or personal life (e.g. a person being repeatedly named by various sources.)
Generally speaking, a court will only approve the order for public information in rare circumstances.
Upon a final verdict, the information regarding a court case becomes public knowledge. This essentially allows anyone to read about what occurred in court for a specific case.
However, in regards to gagging orders, the court will keep the names of any parties involved anonymous. This is to prevent ‘jigsaw identification,’ which is essentially working out who is involved based on the information provided.
Need legal help with a gagging order?
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How much does a gagging order cost?
Most injunctions vary in cost depending on the complexity or severity of the case. As a form of injunction, gagging orders act similarly.
For an accurate estimate of costs, we recommend consulting one of our litigation solicitors that have experience with these matters. Visit our litigation page for more information.
How long does a gagging order last?
The length of a gagging order can vary depending on the scenario at hand. For an interim injunction, the order will only last until the final hearing. This is usually a few days or weeks.
For a final injunction, the order will last for as long as determined by the court. This is usually a couple of years; in extreme cases, the order can last indefinitely.
What are the drawbacks of the order?
Whilst a gagging order might be essential for keeping certain information private, it can also be detrimental to it. If the existence of the order is publicised, it may attract some unwanted attention.
Moreover, in scenarios where a person threatens to publicise private knowledge, it may be hard to stop them from doing so in time. A gagging order application requires a quick submittal without hesitation.
What happens if I break a gagging order?
If you break a legal gagging order, you are subject to some serious penalties. Doing so is contempt of court, which is a serious offence to commit.
Committing this offence falls under the Contempt of Court Act 1981. If you break the conditions of an order, the punishments include:
- Fines of varying sizes
- Payment of damages (for work-related order breaches)
- Seizure of assets
- Imprisonment
If you need legal representation for a gagging order matter, contact our solicitors on 020 3007 5500.
Why should I consult your litigation solicitors?
An application for a gagging order can be quite complex and met with heavy scrutiny from the court and defendant. Therefore, it is vital that you consult an experienced solicitor from the getgo to maximise your chances of success.
At Britton and Time, our solicitors will outline your legal standpoint and help serve your application to the court. To get into contact with us, call us on 020 3007 5500 or visit our contact page.
Can a gagging order be placed upon a person diagnosed with Posterior Cortical Atrophy ?
Hi, in the case of Tavakoli v Imisides [No4] 2014 NSWSC717
Where the Plaintiff a Plastic Surgeon sued a patient who had left.a bad review, the surgeon was successful and awarded some $500,000 in damages.
A gagging order was put in place. I have nothing to do with the case but I am wondering if the gagging order has recently expired which would coincide with before and after photos of patients no longer being permitted to be published. Thus preventing evidence of the patients reasons for leaving a bad review.and additional obstacles for prospective patients in determining the competence of a surgeon without first paying a hefty consultant fee in order to view said photos.
I am really saddened by the Supreme Court decision as it results in a person, whose face has been disfigured no longer being able to speak of their experience for fear of losing everything they have.
I would be grateful if you were able to tell me the length of time the gagging order was put in place for this case if you know, to see if it coincides with these new regulations.
Thank you
Hi
I have evidence that show the police have not been dealing with the convictions of escooter riders.
Fair clearly or consistently for the last three years. I have freedom of information that show warning are put in pocket notebooks and filed.
Freedom of information has in the last couple of days been upgraded to official sensitive so I’m now hitting as brick wall.
I believe this is a national scandal and the interest I had from the press is now not the same. . I have written to goverment in August and they are pushing through legislation to change the pocket notebook fiasco. I believe there is potentially a gagging order in place.
How do I find out. Direct discrimination has beenhappening for 3 years. I also believe giving a policeperson discretion is an abuse of power.