Super injunctions and the Afghan data breach
This week Mr Justice Chamberlain ordered the lifting of a super-injunction in MoD v Global Media and others [2025] EWHC 1806 (KB).
The injunction which has been in place since 2023 suppressed any public or parliamentary discussion of a huge data breach in February 2022, in which the personal information of nearly 19,000 Afghan nationals and over 100 British personnel, including MI6 and SAS operatives, was unintentionally leaked in an email by a Ministry of Defence official. The breach triggered a secret relocation scheme of thousands of at‑risk Afghans at enormous public cost.
It is reasonable to assume that there is clear public interest in the fact the government has already spent £850m on this mitigation, a cost that had the injunction not been lifted could have risen into the billions. In fact, according to The Independent, by June this year, the number of people the Afghan resettlement scheme aimed to resettle had increased to over 42,000, at a cost in excess of £7 billion.
Let’s look a little deeper at the issues at play here.
What is a super injunction?
Injunctions have long been a contentious issue between the judiciary and the press.
A regular injunction is a court order that prevents certain details of a legal case from being made public. In contrast, a super injunction prohibits disclosure not only of the underlying information but also of the existence of the order itself.
They arose from the expansion of privacy and defamation law in the 1990s, particularly the introduction of the Human Rights Act. As a result of these legislative changes super injunctions started appearing. Immediately controversial they were seen by some as supressing freedom of speech and information in the public interest, whilst others argued them vital to protection of privacy.
One of the earliest known super injunctions was obtained by the oil-trading company Trafigura in 2009 to prevent journalists reporting details of toxic waste being dumped along the Ivory Coast.
There have also been several instances of super injunction use by celebrities, notably footballers Ryan Giggs and John Terry. Both used these as a tool to prevent reporting about their private lives.
It is important to note however, that super injunctions are rarely used by governments, or so we think….
Democratic accountability, or the biggest gagging order ever?
Some legal commentators and press organisations have therefore described it as a “secret court within a secret court”. It appears that even routine journalistic and parliamentary oversight was paralysed by the ruling.
In lifting the super injunction this week, Mr Justice Chamberlain found “the sheer scale of the decision making, in terms of the numbers involved and the financial cost, meant that further secrecy was not feasible and was objectionable in principle.”
Defence Secretary John Healey has since stated that this level of secrecy was “deeply uncomfortable,” admitting he didn’t even know whether other super injunctions were in force.
The Intelligence and Security Committee and the National Audit Office have now launched inquiries into both the breach and the government’s transparency—or lack thereof.
Notably, an independent review by Paul Rimmer has already concluded that the risk posed by publication had long since diminished and questioned whether the super injunction in fact magnified the perceived value of the leaked dataset, potentially endangering more people.
Why this matters to public interest and the protection of democracy
This example raises crucial questions about the use, and possible misuse, of super injunctions in the UK.
Whilst they can be vital legal tools to protect privacy and indeed national security, does it follow that they can be used as blanket gag orders? Or does that risk eroding core democratic principles?
In this case Mr Justice Chamberlain concluded that “it is fundamentally objectionable for decisions that affect the lives and safety of thousands of human beings, and involve the commitment of billions of pounds of public money, to be taken in circumstances where they are completely insulated from public debate.”
The key issues at play here are two-fold – transparency and oversight:
- Transparency: Unlike regular injunctions, super injunctions are not typically listed or reported. There is no central public record of how many are in force, nor is there routine disclosure of the risk assessments behind them. This calls into question the need for statistical reporting of their use to become standard – MPs from across the political spectrum have call for detailed questioning of how many other super injunctions exist, and on what basis they are granted.
- Oversight: It has been argued that as a result of this case parliamentary oversight of super injunctions should be mandated. Further, given that parliament was kept unaware of the Afghan breach for most of its duration, and even select committees were kept partly in the dark, perhaps calls for a public inquiry seem necessary to restore democratic confidence.
Possible considerations could therefore include:
- The publishing of an annual register of super injunctions (redacted where necessary for national security) confirming numbers, durations, and basis.
- The introduction of fixed term limits, after which judicial scrutiny and parliamentary notification are triggered to ensure that the super injunction remains in the interests of the public and/or national security
- The establishment of relevant select committees for increased oversight
- The drafting of formal guidance or legislation codifying when super injunctions may be used.
The Afghan data breach super injunction is a watershed moment for modern democracy. In fact, as one commentor put it “democracy dies in darkness”
What do you think?
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