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9 min readThe landscape of civil silencing
Civil litigation in England and Wales routinely produces documentation and disclosure that parties would prefer to keep private. Settlement agreements almost invariably include confidentiality clauses — commonly referred to as gagging clauses when their purpose is to prevent the settling claimant from speaking to the press. These contractual obligations bind the parties but do not of themselves restrict third-party journalists.
Beyond private contracts, courts have additional powers to restrict publication. These range from anonymity orders under the Civil Procedure Rules to super-injunctions that suppress even the existence of proceedings. Each sits in a different part of the legal landscape and carries different implications for journalists.
The fundamental principle is open justice: that justice is done publicly and that the public has a right to know what happens in courts. Derogations from open justice require positive justification and must be proportionate to the aim pursued. The Human Rights Act 1998 requires courts to balance Article 6 (fair trial), Article 8 (privacy), and Article 10 (freedom of expression) when making any order restricting publication.
Injunctions: ordinary, anonymised, and super
An ordinary interim injunction preventing publication is the most common court order a journalist will encounter. It is obtained under the Senior Courts Act 1981 s.37 and must comply with the American Cyanamid test: there is a serious question to be tried; the balance of convenience favours restraint; and damages would not be an adequate remedy. The Human Rights Act 1998 s.12 adds a further hurdle: the court must have particular regard to freedom of expression and must be satisfied that the applicant is likely to establish at trial that publication should not be allowed.
An anonymised injunction (where the claimant is identified by initials only) does not suppress the existence of the proceedings but prevents identification of the parties. Such orders are regularly made in privacy and harassment cases and appear on the judiciary's published list of civil restraining orders. Journalists can report that proceedings exist and can challenge the anonymisation if there is a strong public interest in identification.
A super-injunction also restrains reporting of the fact that an injunction exists. The 2011 report of the committee chaired by the Master of the Rolls confirmed that super-injunctions are exceptional and should be granted only where the claimant demonstrates that disclosure of the existence of the proceedings would itself cause the harm sought to be prevented. They are granted for limited periods and must be reviewed. Any journalist who believes they may be subject to a super-injunction they cannot identify should take urgent legal advice rather than publishing.
Contempt of Court Act 1981 s.39 and protection of children
Section 39 of the Contempt of Court Act 1981 empowers a court in any proceedings to direct that no newspaper or broadcast report shall reveal the name, address, school, or any particulars calculated to lead to the identification of any child involved in the proceedings. It applies in civil as well as criminal proceedings and covers not only defendants but any child who is a witness or is otherwise concerned in the case.
Section 39 is a discretionary power: the court must make an order for it to apply. Journalists attending civil proceedings involving children should check at the outset whether a s.39 order is in force. Breach of a s.39 order is an offence carrying a fine. In proceedings that are primarily about the welfare of children, wider protections under the Children Act 1989 s.97 and the Administration of Justice Act 1960 s.12 will usually also apply and may be more extensive.
In civil settlement contexts, a s.39 order made during proceedings may continue after settlement if not discharged by the court. Always check whether an order remains in force even after a case has settled. The order does not extinguish automatically on settlement.
CPR Part 31 disclosure and without-prejudice material
Civil Procedure Rules Part 31 governs standard disclosure in civil proceedings. Documents that a party is required to disclose under Part 31 are covered by an implied undertaking: a party who receives documents on disclosure may not use them for any purpose other than the proceedings in which they are disclosed. This obligation, sometimes called the Riddick principle from the case of Riddick v Thames Board Mills Ltd[1977], prevents a journalist who obtains disclosed documents from a party from publishing them without the court's permission.
Separately, communications marked without prejudice — correspondence made in a genuine attempt to settle a dispute — are protected from disclosure in legal proceedings by the without-prejudice rule. They are also treated as confidential in the sense that their contents should not be published without consent. A journalist who is passed without-prejudice settlement correspondence by a source should seek legal advice before publishing, as the implied confidence attached to such documents can give rise to a breach of confidence action.
Pre-Action Protocol correspondence is in a similar position. Even before proceedings are issued, letters before claim and protocol responses are exchanged on the understanding that they will not be published to the world. Journalists who obtain such material should assess carefully whether the public interest in disclosure outweighs the implied confidentiality.
Reporting on settled claims without identifying parties
Journalists frequently wish to report on a pattern of behaviour — an organisation that has settled multiple claims from former employees, for example — without identifying the individual claimants who are bound by confidentiality. This is in principle possible and does not require any breach of the settlement agreements by the claimants.
Information about settled civil proceedings may be available from court records (if proceedings were issued before settlement), from Companies House (where the company is publicly listed and required to disclose material litigation), from regulatory filings, or from whistleblowers who are not themselves party to the settlement. Public interest in the pattern of behaviour can be established without relying on any particular claimant to breach their gagging clause.
The subjects of the story will typically respond to pre-publication approach with a threat of injunction if the story is published. Having independent sources who are not NDA-bound, documentary evidence, and a completed legal read are the best defences against such a threat. See the Press Justice Project for support when individuals affected by gagging clauses wish to speak without breaching their agreement.
Active contempt and settled proceedings
The strict liability rule under Contempt of Court Act 1981 s.2 applies only when proceedings are active. In civil proceedings, the Schedule 1 trigger is when the case is set down for trial or a trial date is fixed. Proceedings that settle before trial was set down may therefore never have been “active” for strict liability purposes — though common law contempt can still apply to publications that interfere with the administration of justice.
Once proceedings have concluded (including by settlement), they are no longer active and the strict liability rule ceases to apply. However, court orders — including injunctions and reporting restriction orders — made during the proceedings may survive settlement. A court order remains binding until it is discharged by the court, regardless of whether the underlying claim has settled.
See the broader guide on active proceedings and contempt for the full Schedule 1 analysis.
Data protection and the journalism exemption
When investigating settlement gagging patterns, a journalist may obtain personal data about parties to civil claims from a variety of sources. The UK GDPR and Data Protection Act 2018 apply to that processing. However, the journalism exemption under Schedule 2 paragraph 26 of the DPA 2018 allows processing for journalistic purposes where the controller reasonably believes that publication is in the public interest and that compliance with the UK GDPR provision would be incompatible with the journalistic purpose.
The exemption does not provide a blanket licence. It must be applied specifically to each provision claimed and the public interest must be genuine. See the full guide on the data protection journalism exemption.
Key scenarios at a glance
Ordinary injunction
Prevents publication of specified content. Must satisfy HRA 1998 s.12 threshold — claimant likely to succeed at trial. Can be challenged on Article 10 grounds.
Anonymised injunction
Prevents identification of parties but not existence of proceedings. Appears on the Judiciary's civil restraining orders list. Challengeable if there is a strong public interest in naming.
Super-injunction
Also prevents reporting the existence of the order. Exceptional and time-limited. If you suspect one, take urgent legal advice before publishing anything.
Settlement gagging clause (contractual)
Binds the settling party, not the journalist. The NDA-bound source risks breach of contract liability. Journalist liability is governed by defamation and privacy law.