When Donald Rumsfeld came up with the phrase "unknown unknowns" he inadvertently summed up the effect of the super-injunction. These legal instruments not only prevent the British media from reporting on a subject, in the manner of a normal injunction, but also forbid media outlets from reporting that an injunction has been granted. In other words, the public are not only prevented from knowing information, they are also prevented from knowing that they do not know it.
But sometimes unknown unknowns, hidden deep in the darkness of court-ordered secrecy, are dragged into the light regardless. The BBC broadcaster Andrew Marr has voluntarily revealed that he managed to persuade a judge to grant a super-injunction in 2008 that prevented details of his extramarital affair being reported. What is more, Mr Marr now argues that super-injunctions are "running out of control".
This volte face highlights a growing sense of disquiet about such super-injunctions. The instruments are growing in number. There are believed to be about 30 other gagging orders in place. They are growing in scope, too. The High Court judge Mr Justice Eady last week issued a "contra mundum" injunction, effectively a worldwide and never-ending ban on the reporting of information. Given that these injunctions often involve the infidelities of celebrities, some people have assumed that the only thing the public is being denied is access to salacious gossip. But that assumption is a mistake. In the case of at least one super-injunction there was an issue of genuine public interest involved. In 2009, the oil-trading firm Trafigura took out a super-injunction to prevent information being reported in relation to a toxic disaster in Ivory Coast. The existence of the legal order was only revealed because an MP, Paul Farrelly, referred to it in the House of Commons.
Moreover, such is the secrecy surrounding super-injunctions that the public simply cannot make a judgement about whether justice is being done. Media organisations are forbidden from reporting not only the details of the case, but the reasons why an individual judge has reached a decision. Justice needs to be open if it is to command public respect. It is hard to see how super-injunctions can be compatible with a transparent legal system.
There are parallels with the battle over the blanket secrecy that until recently prevailed in the family courts and the Court of Protection. Here, reporting restrictions had sound justifications, namely to protect the privacy of children and vulnerable adults. But that secrecy went too far and harmed the broader interests of justice. Controversial decisions were hidden from public view. Protection swamped transparency. The same thing has happened in the case of super-injunctions.
Judges have granted several super-injunctions under the Human Rights Act, which guarantees a right to a private life. It is perfectly proper for them to take that legislation into consideration. But too often the balance between that right and the right to free expression, also enshrined in the Human Rights Act, has been lost.
The family courts and the Court of Protection have been opened up in recent years thanks to public and media pressure. The privacy of the vulnerable has been preserved, but so too has the right of the press to bring important information into the public domain. A similar rebalancing needs to take place in our legal system over super-injunctions. The Master of the Rolls, Lord Neuberger, will publish a report on the use of them next month. It is to be hoped that he will recommend such sensible reforms. If not, the appropriate boundary between free reporting and privacy will need to be drawn in Parliament.