Intellectual Property and the Internet/Injunction

An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. In some cases, breaches of injunctions are considered serious criminal offenses that merit arrest and possible prison sentences.

The term interdict is used in Scots law.[1]

Rationale and reasons for injunctionsEdit

This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.

These are some common reasons for injunctions:

  • stalking
  • domestic violence
  • harassment
  • discrimination
  • bullying (in some cases)
  • physical abuse|physical or sexual abuse
  • the wrongful transfer of real property, also called fraudulent conveyance
  • the disclosure of sensitive information in line with the Official Secrets Act 1989 (UK only)
  • trademark infringement
  • copyright infringement
  • patent infringement
  • trade secrets|trade secret disclosure
  • tortious interference of contract
  • criminal contempt
  • civil contempt
  • unauthorized practice of law

Gag orders (many countries)Edit

A gag order is an order by a court or government restricting information or comment from being made public.

American injunctionsEdit

Temporary restraining ordersEdit

A temporary restraining order (TRO) may be issued for short term. A TRO usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction.

A TRO may be granted ex parte, without informing in advance the party to whom the TRO is directed. Usually, a party moves ex parte to prevent an adversary from having notice of one's intentions. The TRO is granted to prevent the adversary from acting to frustrate the purpose of the action, for example, by wasting or hiding assets (as often occurs in divorce) or disclosing a trade secret that had been the subject of a non-disclosure agreement.

To obtain a TRO, a plaintiff must prove four elements: (1) likelihood of success on the merits; (2) the extent to which the plaintiff is being irreparably harmed by the defendant's conduct; (3) the extent to which the defendant will suffer irreparable harm if the TRO issues; and (4) the public interest.[2]

Other kinds of restraining ordersEdit

Many states have injunction laws that are written specifically to stop domestic violence, stalking, sexual assault or harassment and these are commonly called restraining orders, orders of protection, abuse prevention orders, or protective orders.

Injunctions in US labor law contextEdit

After the United States government successfully used an injunction to outlaw the Pullman Strike|Pullman boycott in 1894 in In re Debs, employers found that they could obtain United States federal courts|federal court injunctions to ban strikes and organizing activities of all kinds by trade union. These injunctions were often extremely broad; one injunction issued by a federal court in the 1920s effectively barred the United Mine Workers of America from talking to workers who had signed "yellow dog contracts" with their employers.

Unable to limit what they called "government by injunction" in the courts, labor and its allies persuaded the Congress of the United States in 1932 to pass the Norris-LaGuardia Act, which imposed so many procedural and substantive limits on the federal courts' power to issue injunctions that it was an effective prohibition on federal court injunctions in cases arising out of labor disputes. A number of states followed suit and enacted "Little Norris-LaGuardia Acts" that imposed similar limitations on state courts' powers. The courts have since recognized a limited exception to the Norris-LaGuardia Act's strict limitations in those cases in which a party seeks injunctive relief to enforce the grievance arbitration provisions of a collective bargaining Contract|agreement.

Employment discriminationEdit

Differing from most other cases, where equitable relief is given very rarely, in discrimination cases, injunctive relief is actually the preferred method of remedy.[3] However, if there is evidence that there is now a hostile relationship between the employer and employee, the court may order a reasonable amount of "front pay"[4] along with the back pay (back pay: The amount of lost wages and benefits that an employee lost ever since he was terminated, up to the point that the judgment is entered[5]).

Australian apprehended violence ordersEdit

A court may grant an apprehended violence order (AVO) to a person who fears violence, harassment, abuse, or stalking.[6] A court may issue an AVO if it believes, on the balance of probabilities, that a person has reasonable grounds to fear personal violence, harassing conduct, molestation, intimidation, or stalking. A defendant's non-compliance with the order may result in the imposition of a fine, imprisonment, or both.

UK superinjunctionsEdit

In England and Wales, injunctions whose existence and details may not be legally reported, in addition to facts or allegations which may not be disclosed, have been issued; they have been given the informal name of superinjunctions (or super-injunctions).[7][8]

An example was the superinjunction raised in September 2009 by Carter-Ruck solicitors on behalf of oil trader Trafigura, prohibiting the reporting of an internal Trafigura report into the 2006 Côte d'Ivoire toxic waste dump scandal. The existence of the superinjunction was revealed only when it was referred to in a parliamentary question that was subsequently circulated on the Internet (parliamentary privilege protects statements which would otherwise be held to be in contempt of court). Before it could be challenged in court, the injunction was then varied to permit reporting of the question.[9] By long legal tradition, parliamentary proceedings may be reported without restriction.[10] Parliamentary proceedings are only covered by qualified privilege. Another example of the use of a superinjunction was in a libel case in which a plaintiff who claimed he was defamed by family members in a dispute over a multimillion pound family trust obtained anonymity for himself and for his relatives.[11]

Roy Greenslade credits the editor of The Guardian, Alan Rusbridger, with coining the word "super-injunction" in an article about the Trafigura affair in September 2009.[12]

The term "hyper-injunction" has also been used to describe an injunction similar to a superinjunction but also including an order that the injunction must not be discussed with members of Parliament, journalists or lawyers. One known hyper-injunction was obtained at the High Court in 2006, preventing its subject from saying that paint used in water tanks on passenger ships can break down and release potentially toxic chemicals.[13][14] This example became public knowledge in Parliament under parliamentary privilege.[15]

By May 2011, Private Eye claimed to be aware of 53 super-injunctions and anonymised privacy injunctions,[16] though David Neuberger, Baron Neuberger of Abbotsbury|Lord Neuberger's report into the usage of super-injunctions revealed that only two super-injunctions had been granted since January 2010. Many media sources were wrongly stating that all gagging orders were super-injunctions.[17]


ReferencesEdit

  1. Linklater, Magnus (23 May 2011). "Scots law is different, but it’s still a risk". London: The Times. http://www.thetimes.co.uk/tto/news/uk/scotland/article3028709.ece. Retrieved 23 May 2011. 
  2. Pappan Enters. v. Hardee's Food Sys., 143 F.3d 800, 803 (3d Cir. 1998).
  3. "Damages". http://www.workplacefairness.org/damages#4. Retrieved September 4, 2010. 
  4. "Damages". http://www.workplacefairness.org/damages#5. Retrieved September 4, 2010. 
  5. "Damages". http://www.workplacefairness.org/damages#2. Retrieved September 4, 2010. 
  6. "New South Wales - Apprehended Violence Orders". National Council of Single Mothers and Their Children. http://www.ncsmc.org.au/wsas/legal_system/avo_nsw.htm. Retrieved September 26, 2010. 
  7. Press Gazette, 14 October 2009, MPs slam 'super injunction' which gagged Guardian
  8. Robinson, James (2009-10-13). "How super-injunctions are used to gag investigative reporting". The Guardian (London). http://www.guardian.co.uk/uk/2009/oct/13/super-injunctions-guardian-carter-ruck. 
  9. http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110317/halltext/110317h0001.htm
  10. The Guardian, 13 October 2009, Trafigura drops bid to gag Guardian over MP's question
  11. Leigh, David (29 March 2011). "Superinjunction scores legal first for nameless financier in libel action". London: guardian.co.uk. http://www.guardian.co.uk/law/2011/mar/29/superinjunction-financier-libel-legal-case. Retrieved 3 April 2011. 
  12. Greenslade, Roy (20 April 2011). "Law is badly in need of reform as celebrities hide secrets". Evening Standard. http://www.thisislondon.co.uk/markets/article-23943177-law-is-badly-in-need-of-reform-as-celebrities-hide-secrets.do. Retrieved 30 April 2011. 
  13. Swinford, Steven (21 March 2011). "'Hyper-injunction' stops you talking to MP". The Daily Telegraph (London). http://www.telegraph.co.uk/news/uknews/law-and-order/8394566/Hyper-injunction-stops-you-talking-to-MP.html. 
  14. "Now 'hyper-injunction' gagging order stops constituent speaking to his own MP". Daily Mail (London). 21 March 2011. http://www.dailymail.co.uk/news/article-1368395/Now-hyper-injunction-gagging-order-stops-constituent-speaking-MP.html. 
  15. Tim Dowling (21 March 2011). "Got secrets you want to keep? Get a hyper-injunction". The Guardian (London). http://www.guardian.co.uk/law/2011/mar/21/secrets-to-keep-hyper-injunction?INTCMP=SRCH. 
  16. "Number crunching". Private Eye (Pressdram Ltd) 1288: 5. 2011. 
  17. "Media concession made in injunction report". BBC News (BBC). 20 May 2011. http://www.bbc.co.uk/news/uk-politics-13465286. Retrieved 20 May 2011. 

External linksEdit

Last modified on 18 March 2012, at 22:56