The recent spate of super injunctions has gripped the UK press
for some time now. Several high profile individuals have been
revealed to have applied for super injunctions to be granted to
prevent third parties from disclosing (usually) damaging
revelations about them to the public.
What is a super injunction?
A super injunction is a legal tool used to protect the privacy
of an individual or individuals. Unlike cases in the past regarding
privacy, which have been widely reported (such as certain widely
publicised privacy cases involving celebrities like Naomi Campbell
or Michael Douglas and Catherine Zeta-Jones), a super injunction is
more of a comprehensive gagging order which, in addition to
preventing the publication of the details the subject of it, also
prevents the parties to it from mentioning the injunction itself,
the idea being to create a virtual information blackout.
The super-injunction evolved out of a series of court rulings,
going back to the UK 1998 Human Rights Act, citing the right to
privacy under this Act as the basis for the super injunction.
Various judges have interpreted this right in numerous ways, and
without any further statutory guidance, the court took the step to
create this remedy.
How is a super injunction connected to image rights?
Information which is the subject of a super injunction can often
be said to have the potential to damage or reduce the value of
someone's "image". While it cannot be said that all
"negative" press attention will devalue the image of an
individual, this can only be measured on a case by case basis.
Recent examples of super injunctions have related to Premiership
footballers. While you may consider that a footballer may apply for
a super injunction for personal reasons, one must also consider the
sources of income that could be affected by damage to their image,
such as sponsorship, merchandising and advertising contracts.
Effectively, the super injunction allows the individual concerned
to continue to exploit their image for monetary gain while
preventing any potential devaluation.
Super injunctions are not specifically designed for this
purpose, but the fact that the courts have considered them to be
necessary at all presents a clear picture: image rights have value
and should be capable of protection. Statutory protection for image
rights would be beneficial, both for the protection and
exploitation of a person's image. Against this background,
there have been calls for Parliament to legislate on the degree of
protection that should be afforded for an individual's image
right and Guernsey is ahead of the game in this innovative and
extremely important area of law.
The proposed image rights legislation in Guernsey would be the
first of its kind and would further secure Guernsey's position
as a world-leading jurisdiction for IP. We are currently awaiting
the draft legislation and further information on this exciting new
IP right will follow soon.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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