A Not Entirely Secret History of Superinjunctions Against the British Press: When Public Interest Arguments Take Second Place

This article revisits the history of judicial pre-publication censorship since the passage of the 1998 Human Rights Act – mainly non-disclosure injunctions commonly referred to as superinjunctions – through the interplay between three ilities: Practicability, accountability and suitability. The intertwining of these three concepts offers a pathway to explore various strategies of circumvention employed within news organisations, the legislative and the general public, as well as the role of technology in facilitating such tactics, in cases of pre-publication censorship. A qualitative case-study approach is adopted and findings are based on open access archival research for the period since the afore mentioned Act came into effect. This article demonstrates how pressure has been brought to bear on the legislative and judiciary, as the national British press has criticised failure to recognise the significance of public interest in cases of pre-publication censorship. However, it is argued that change has been limited to a slightly greater degree of transparency and that the interplay between the three ilities reinforces calls for an end to this form of prior restraint on freedom of expression as well as improvements to the self-regulatory system in place.