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Private Eye editor criticises ‘Kafkaesque’ anonymised court order preventing mention of legal proceedings Challenging the superinjunction obtained by Andrew Marr to suppress reports of the BBC presenter’s extramarital affair cost tens of thousands of pounds and took several years, the editor of Private Eye has said. Ian Hislop was celebrating a legal victory after the easing of the restrictive terms of a “Kafkaesque” injunction taken out by Marr, one that prevented even the mention of any legal proceedings. But Hislop said he deplored the expense of fighting to have it done. The decision by Marr to allow the terms of the gagging order to be relaxed, which came after the threat of legal action by Hislop, is the latest twist in the row over the proliferation of superinjunctions and anonymised court orders. The development of privacy protection through successive celebrity cases has provoked anxiety about the powers wielded by courts to prevent claimants being identified. “The Marr case was the most absurd possible,” Hislop told the Guardian. “The story [about allegedly fathering a child during an affair] wasn’t even true. It headed into Kafkaesque territory. Tens of thousands of pounds have been spent [challenging] this order. We went to his lawyers and said we were going to court and after a lot of bargaining … he said we could vary it again. “How are we meant to know about these superinjunctions if we don’t even get sent them? It’s bonkers. Our problem [in challenging them] is that we need to concentrate the few resources we have on the cases we think might be important.” Marr, the BBC’s former political editor, won a high court order in January 2008 to silence the media following an extramarital affair eight years ago with a national newspaper journalist. She had a child, but Marr is not the father. On Tuesday’s BBC Today programme, Hislop accused Marr of hypocrisy. “As a leading BBC interviewer who is asking politicians about failures in judgment, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist,” Hislop said. Meanwhile, in an interview with the Daily Mail, Marr – married to Guardian columnist Jackie Ashley – said he felt “uneasy” about the order. “I did not come into journalism to go around gagging journalists,” he said. “Am I embarrassed by it? Yes.” But he added: “I still believe there was, under those circumstances, no public interest in it.” He acknowledged, however, that injunctions now seemed to be “running out of control”. Last week the prime minister intervened in the superinjunction debate, warning that judges were establishing far-reaching precedents in suppressing the identification of individuals through their interpretation of article eight of the European convention on human rights, which guarantees “the right to respect for private and family life”. David Cameron said: “The judges are creating a sort of privacy law, whereas what ought to happen in a parliamentary democracy is parliament … should decide how much protection do we want … so I am a little uneasy about what is happening.” Chastened by adverse publicity in the wake of the Trafigura case – where a superinjunction was obtained restricting reporting of a draft confidential report about a toxic waste incident in west Africa – the courts appear to have modified their methods. Fewer long-term superinjunctions – those that forbid reporting of even the order’s existence – have been granted in recent months. Instead, the judicial pattern has switched to short-term superinjunctions, allowing papers to be served, at which point it becomes an order in which only some details are anonymised. Precisely how many orders have been granted is unknown. Best estimates suggest that there are between 20 and 30 currently in force; there may have been as few as five correctly described as “superinjunctions” over the same period. In an attempt to provided a more informed platform for public debate, the Ministry of Justice has said it will provide figures. “The MoJ’s chief statistician is currently examining the issue of how reliable data on the number of injunctions issued by the courts might be collated in the future,” it said. A legal review of the use of superinjunctions to suppress media reporting, conducted by the master of the rolls, Lord Neuberger, will publish its findings next month. It is expected to recommend procedural changes to the way the courts handle such cases rather than changes to the law. Will Richmond-Coggan, a solicitor advocate with the law firm Pitmans who specialises in applying for injunctions, said there may have been “hundreds” of superinjunctions in commercial cases that did not involve Premier League footballers or celebrity infidelities. “The broader professional public are unaware of cases involving freezing or seizing assets,” he said. “There are commercial sensitivities where even the fact that a firm has obtained an injunction would be damaging.” Index on Censorship welcomed Marr’s decision to abandon the superinjunction. John Kampfner, its chief executive, said: “While there may be exceptional circumstances in which injunctions may be necessary, we are seeing gagging orders being used to hide the wealthy from embarrassment and even commercial damage. We are in danger of creating a secret network of secret rich man’s justice.” Andrew Marr Superinjunctions Private Eye David Cameron Trafigura Newspapers & magazines Magazines Owen Bowcott guardian.co.uk