Gag order

A gag order (also known as a gagging order or suppression order) is an order, typically a legal order by a court or government, restricting information or comment from being made public or passed onto any unauthorized third party. The phrase may sometimes be used of a private order by an employer or other institution.

Uses of gag orders include keeping trade secrets of a company, protecting the integrity of ongoing police or military operations, and protecting the privacy of victims or minors. Conversely, as their downside, they may be abused as a useful tool for those of financial means to intimidate witnesses and prevent release of information, using the legal system rather than other methods of intimidation. Strategic lawsuit against public participation (SLAPP) orders may potentially be abused in this way.[1][2]

Gag orders are sometimes used in an attempt to assure a fair trial by preventing prejudicial pre-trial publicity, although their use for this purpose is controversial since they are a potentially unconstitutional prior restraint that can lead to the press's using less reliable sources such as off-the-record statements and second- or third-hand accounts.[3]

In a similar manner, a "gag law" may limit freedom of the press, by instituting censorship or restricting access to information.[4]

Examples

Australia

In the summer of 2014, WikiLeaks revealed the existence of an Australia-wide gagging order, issued 19 June by the Supreme Court of Victoria, to block reporting of bribery allegations involving several international political leaders in the region.[5][6]

In December 2018, International news sources have reported that Cardinal George Pell's conviction on child-molestation charges is subject to a gag order issued by Victoria, Australia court Judge Peter Kidd, suppressing coverage of the conviction by Australian media companies.[7][8][9][10] In early February 2019, Victoria's DPP, Kerri Judd QC, wrote to around 50 Australian news publishers, editors, broadcasters, reporters and subeditors, accusing them of breaking the gag order. Peter Kidd told a closed court that some of the breaches were serious and editors faced jail.[11]

India

After the 2008 Mumbai attacks in which live streaming of the event was broadcast, the Indian government proposed a draft law that would gag media outlets broadcasting live pictures during a terrorist event or war, to ensure the safety of any hostages and to protect security operations from hindrance. This has been opposed by Indian media who argue that they have adopted 'self-regulation' during such events and refrain from doing so anyway. It is uncertain if the draft law will be passed.[12]

In 2017 Justice Karnan was a retiring high court judge of Kolkata, he was accused of disrespecting supreme court of India. Hence supreme court of India ordered the arrest of Justice Karnan and also a GAG order has been released and his press release was not published.[13]

Israel

In late 2009, Israel issued a gag order against the Israeli media reporting on facts surrounding the Anat Kamm–Uri Blau affair. The gag order was ultimately subject to widespread criticism and publicity as the details of the case were reported overseas. The scandal centered around leaked documents from the Israeli Defense Force which suggested the military had engaged in extrajudicial killings.[14]

A gag order concerning the Prisoner X affair prevented Israeli coverage of the topic for more than two years. After numerous foreign media outlets revealed the prisoner's identity and other key facts in February 2013, a court partially lifted the gag order, allowing Israeli media to quote foreign press reports but offer no original reporting.[15]

On 13 November 2013 a gag order concerning a famous Israeli singer suspected of sex with girls below the age of consent was issued. While the traditional media did not advertise the name of the singer, social media platforms users like Facebook published the singer name and incriminating photos. On 20 November Eyal Golan released a press statement announcing he was the suspected singer.[16]

In August 2017, Israeli court issued a month-old gag order on a state witness deal regarding the ongoing criminal investigations of the Prime Minister, Benjamin Netanyahu.

Malaysia

There was speculation that a gag order may be imposed by the MCA on their press statements before they are released to the public to "ensure maximum effectiveness". Such releases would have to be approved by the president.[17] These claims in the media were later denied.[18]

Europe

United Kingdom
See also: 2011 British privacy injunctions controversy

A gag order, or anonymity order, is sometimes issued by courts in the United Kingdom to protect privacy, prevent harm to suspects, prisoners,[19] witnesses, victims, or to protect national security.[20] In the Allan Chappelow murder case, the trial was held mostly in camera and media were prevented from speculating on the case. The order was imposed after a "compelling case" made by prosecutors, despite overwhelming media opposition brought by a legal challenge to the ruling.[21][22][23] This criminal case has been thought to be the first in which a gagging order was imposed.[24]

According to WikiLeaks, "the Guardian [has] been served with 10 secret gag orders —so-called 'super-injunctions'— [between January and September 2009]. In 2008, the paper was served with six. In 2007, five."[25]

In 2011, gagging orders that applied to themselves, or "super-injunctions" as they were called, were being referred to almost daily in the United Kingdom after a number of high-profile public figures, including celebrities and politicians, censored the British media from revealing information about their personal lives, such as affairs[26] and dealings with prostitutes.

Gag orders protecting the privacy of convicted child murderers such as Mary Bell, Jon Venables and David McGreavy, in order to protect them from revenge attacks, have also been controversial because of public concerns about the inability to avoid such persons and protect victims' families and other children from being harmed by them.[19][27]

The Netherlands

In The Netherlands, ethologist Gerrit van Putten was given two separate gag orders by the Minister of Agriculture to protect intensive farming. The first gag order was issued after Van Putten had published a report on tail biting in pigs in 1972, and had advocated that the pig's tail is a thermometer of animal welfare, which was discarded when the "temperature" became too high, i.e. the tails were docked rather than that housing conditions were improved. The second gag order was issued in 1989 by Minister Braks, who did not want to hear about the adverse effects of confined housing of pigs.[28][29][30]

In 2015, a Dutch court issued a gag order on writer Edwin Giltay, banning his non-fiction thriller The Cover-up General and prohibiting him to promote it. The suppression order denied Edwin Giltay to disclose the contents of the book, which delineates an espionage scandal within Dutch military intelligence that he witnessed first-hand, about obscuring evidence of war crimes in Srebrenica.[31][32][33] In 2016, the Court of Appeal in The Hague revoked the gag order and the book ban.[34]

United States
See also: Gag rule (United States)

A national security letter (18 U.S.C. § 2709), an administrative subpoena used by the FBI, has an attached gag order which restricts the recipient from ever saying anything about being served with one.[35] The government has issued hundreds of thousands of such NSLs accompanied with gag orders. The gag orders have been upheld in court.[36]

Suspicious activity reports (31 U.S.C. § 5318(g)(2); the Housing and Community Development Act of 1992 / Annunzio-Wylie Anti-Money Laundering Act, Pub.L. 102–550, § 1517(b), 106 Stat. 4060) require that "If a financial institution or any director, officer, employee, or agent of any financial institution [...] reports a suspicious transaction to a government agency—neither the financial institution, director, officer, employee, or agent of such institution (whether or not any such person is still employed by the institution) [...] may notify any person involved in the transaction that the transaction has been reported; and no current or former officer or employee of or contractor for the Federal Government or of or for any State, local, tribal, or territorial government within the United States, who has any knowledge that such report was made may disclose to any person involved in the transaction that the transaction has been reported".

18 U.S.C. § 2705(b) (the Electronic Communications Privacy Act of 1986 / Stored Communications Act) also provides for gag orders which direct the recipient of a 18 U.S.C. § 2703(d) order to refrain from disclosing the existence of the order or the investigation.[37]

18 U.S.C. § 3123(d)(2) (the Electronic Communications Privacy Act of 1986) also provides for gag orders which direct the recipient of a pen register or trap and trace device order not to disclose the existence of the pen/trap or the investigation.[38]

In the United States, a court can order parties to a case not to comment on it but has no authority to stop unrelated reporters from reporting on a case. Thus, information concerning a case is often leaked to the media, and the media often chooses to publicly report this leaked information after receiving it. Most statutes which restrict what may be reported have generally been found unconstitutional and void. However, the gag provisions of the WIPO Copyright and Performances and Phonograms Treaties Implementation Act have been upheld.

The trials of Guantanamo Bay suspects have also been subjected to a gag order, which has hindered public scrutiny.[39] Likewise, as part of a plea bargain John Walker Lindh consented to a gag order to not talk to the press or others. Also, Judge Howard Shore from San Diego put a gag order on activist Jeff Olson.[40]

Gag orders can be part of a settlement agreement between two parties. In the state of Pennsylvania in 2011, a lifetime gag order on the discussion of fracking was agreed to by a family as part of their agreement with the oil and gas drilling company Range Resources. An attorney for Range Resources claimed in court that the gag order covered not only the adults in the family, but also the children, then aged seven and ten years old, and that the company intended to enforce it.[41][nb 1]

Some U.S. states, the first of which was Florida, have enacted so-called "physician gag laws" limiting doctors' ability to talk to their patients about their gun ownership.[4]

California

In 2017, California enacted the California Electronic Communications Privacy Act, adjusting California Penal Code 1546, including Section 1546.2 (b) (1), a provision which allows that in certain cases, a court can issue "an order delaying notification and prohibiting any party providing information from notifying any other party" that an electronic search warrant has been requested by a government entity.[43]

Puerto Rico
Main article: Gag Law (Puerto Rico)

On May 21, 1948, a bill was introduced before the Puerto Rican Senate which would restrain the rights of the independence and Nationalist movements on the archipelago, which was a colony of the United States at the time. The Senate, controlled by the Partido Popular Democrático (PPD), approved the bill that day.[44] This bill, which resembled the anti-communist Smith Act passed in the United States in 1940, became known as the Ley de la Mordaza (Gag Law, technically "Law 53 of 1948") when the U.S.-appointed governor of Puerto Rico, Jesús T. Piñero, signed it into law on June 10, 1948.[45]

Under this new law it became a crime to print, publish, sell, or exhibit any material intended to paralyze or destroy the insular government; or to organize any society, group or assembly of people with a similar destructive intent. It made it illegal to sing a patriotic song, and reinforced the 1898 law that had made it illegal to display the Flag of Puerto Rico, with anyone found guilty of disobeying the law in any way being subject to a sentence of up to ten years imprisonment, a fine of up to US$10,000 (equivalent to $106,000 in 2019), or both. According to Leopoldo Figueroa, the lone non-PPD member of the Puerto Rico House of Representatives, Law 53 was repressive and was in violation of the First Amendment of the US Constitution which guarantees Freedom of Speech. He pointed out that the law as such was a violation of the civil rights of the people of Puerto Rico.[46]

gollark: I want to write code in this way, I think this way is *better*, and it won't let me.
gollark: I think my style is better than the Go one.
gollark: For "fast stupider web-y Python" Go somewhat works, but I don't think it's generally very good.
gollark: I think languages which do are generally better than ones which don't.
gollark: Yes. However, having a language which actually ALLOWS YOU TO WRITE THAT as a generalized thing would be better without compromising elegance with weird special cases like Go also does.

See also

Notes
  1. After court records were unsealed and the settlement was reported in the press, the chief counsel for Range Resources denied that the gag order applied to the children. In a letter to the family's attorney, he wrote, "Range has never, at any time, had the intention of seeking to hold a minor child legally accountable for a breach of that provision of the settlement agreement."[42]

References
  1. Caloyannides, Michael A. (2004). Privacy Protection and Computer Forensics, Second Edition. Computer Protection Series. Artech House. pp. 302–304. ISBN 978-1580538305.
  2. Malloy, Michael P. (2011). "14: Supervision of Troubled and Failing Institutions". Banking Law & Regulation. Aspen Publishing. pp. 14–4. ISBN 978-1454801078.
  3. Chemerinsky, Erwin. "Lawyers Have Free Speech Rights Too". Loyola of Los Angeles Entertainment Law Journal. 14.
  4. Rathore, Mobeen (April 2014). "Physician "Gag Laws" and Gun Safety". Virtual Mentor. Archived from the original on 17 November 2015. Retrieved 15 November 2015.
  5. Assange, Julian (29 July 2014). "Australia bans reporting of multi-nation corruption case involving Malaysia, Indonesia and Vietnam". Wikileaks.org. Retrieved 27 August 2014.
  6. Booth, Robert (30 July 2014). "WikiLeaks reveals Australian gagging order over political bribery allegations". guardian.com. The Guardian. Retrieved 27 August 2014.
  7. "A top cardinal's sex-abuse conviction is huge news in Australia. But the media can't report it there". Washington Post. 12 December 2018. Retrieved 16 December 2018.
  8. "Cardinal George Pell Reportedly Convicted Of Sex Abuse Amid Gag Order In Australia". NPR. 13 December 2018. Retrieved 16 December 2018.
  9. "Vatican No. 3 Cardinal George Pell Convicted on Charges He Sexually Abused Choir Boys". The Daily Beast. 11 December 2018. Retrieved 16 December 2018.
  10. "Report: Third-Highest Ranking Vatican Official Convicted on Sex Abuse Charges in Australia". Slate. 12 December 2018. Retrieved 16 December 2018.
  11. Meade, Amanda (26 February 2019). "Dozens of journalists accused of breaking Pell suppression order face possible jail terms". The Guardian. Retrieved 26 February 2019.
  12. Mitta, Manoj (7 January 2009). "Law readied to gag TV in crises". The Times of India. Retrieved 8 September 2011.
  13. Needs verification and sources.
  14. "Debate in Israel on Gag Order in Security Leak Case". The New York Times. 6 April 2010. Retrieved 8 September 2011.
  15. Ravid, Barak (14 February 2013). "Ben Zygier affair: Israel partially lifts gag order on case of dual citizen's prison suicide". Haaretz. Retrieved 14 February 2013.
  16. Hartman, Ben (20 November 2013). "Eyal Golan revealed to be mystery singer suspected of sex with underage girls". The Jerusalem Post. Jerusalem. Archived from the original on 5 September 2015. Retrieved 18 September 2015.
  17. Order To Endorse Press Statements To Maximise Effectiveness, Says Tee Keat, Bernama, 8 January 2009.
  18. Tee Keat: No gag order on MCA bureau chiefs, The Sun Daily, 8 January 2009.
  19. Alan Travis (22 May 2013). "Triple child killer David McGreavy can be named, high court judges rule: Judges revoke 'mistaken' gagging order about coverage of long-serving UK prisoner's parole application". The Guardian. Retrieved 22 May 2013. An anonymity order preventing the naming of one of Britain's most notorious child killers as David McGreavy has been lifted by the high court.
  20. Reporting Restrictions in the Criminal Courts (PDF) (Report). Judicial Studies Board. October 2009. Archived from the original (PDF) on 6 June 2013. Retrieved 22 June 2013.
  21. Casciani, Dominic (15 January 2008). "Secrecy ruling over murder trial". BBC News. Retrieved 10 September 2011.
  22. Norton-Taylor, Richard (11 January 2008). "Secrets and lies". The Guardian. Retrieved 10 September 2011.
  23. "News in Brief". The Times. 14 January 2008. Retrieved 10 September 2011.
  24. Gibb, Frances (13 December 2007). "Why is Home Office trying to stage murder trial in secret?". The Times. Retrieved 10 September 2011.
  25. "Guardian still under secret toxic waste gag". WikiLeaks. 14 October 2009. Archived from the original on 2 September 2011. Retrieved 8 September 2011.
  26. Swinford, Steven (23 May 2011). "Ryan Giggs: from golden boy to tarnished idol". The Daily Telegraph. Retrieved 28 May 2011.
  27. Wright, Simon (24 January 2015). "James Bulger Killer Jon Venables Joins Dating Website Under Different Name". Daily Mirror. Retrieved 8 May 2015.
  28. "Andere Tijden: Lekker Dier". 11 July 2013. Retrieved 15 November 2014.
  29. "Dierenwelzijn, Resource". 30 November 2006. Archived from the original on 23 April 2016. Retrieved 15 November 2014.
  30. "Braks wil spreekverbod ambtenaar niet opheffen". 14 February 1989. Retrieved 15 November 2014.
  31. ECLI:NL:RBDHA:2015:15050 (District court The Hague, December 11, 2015).
  32. Husejnović, Alosman (4 January 2016). "Casper ten Dam: Nakon zabrane knjige o Srebrenici pravdu ćemo tražiti do Evropskog suda!" [Casper ten Dam: The Srebrenica book prohibition will lead us to seek justice all the way to the European Court!]. Dnevni Avaz (in Bosnian). Retrieved 4 January 2020.
  33. "Netherlands: Court bans book on Srebrenica genocide". Mapping Media Freedom, Index on Censorship. 24 December 2015. Retrieved 4 January 2020.
  34. ECLI:NL:GHDHA:2016:870 (Court of Appeal The Hague, April 12, 2016).
  35. "ACLU Roadmap of Justice Department Inspector General's Review of the FBI's Use of National Security Letters". American Civil Liberties Union. 19 March 2007. Retrieved 10 September 2011.
  36. Kravets, David (20 October 2009). "Judge Refuses to Lift 5-Year-Old Patriot Act Gag Order". Wired News. Retrieved 10 September 2011.
  37. In Re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d) of 25 January 2013, p. 4, from the Wikileaks-related Twitter subpoenas
  38. In Re: Sealing and Non-disclosure of Pen/Trap/2703(d) Orders of 30 May 2008, p. 5
  39. Finn, Peter (7 January 2009). "Judge's Order Could Keep Public From Hearing Details of 9/11 Trials". The Washington Post. Retrieved 10 September 2011.
  40. "San Diego Judge Puts Unprecedented Gag Order on Sidewalk Chalk Protestor Trial". Truthout. 28 June 2013. Retrieved 1 July 2013.
  41. Goldenberg, Suzanne (5 August 2013). "Children given lifelong ban on talking about fracking". The Guardian. Retrieved 6 August 2013.
  42. Don, Hopey (7 August 2013). "Hallowich children not part of Marcellus Shale gag order agreement". Pittsburgh Post-Gazette. Retrieved 14 August 2013.
  43. "CA Penal Code § 1546.2 (2017)". Onecle Inc. State of California. 2017. Retrieved 26 May 2020.
  44. "La obra jurídica del Profesor David M. Helfeld (1948-2008)'; by: Dr. Carmelo Delgado Cintrón Archived March 27, 2012, at the Wayback Machine
  45. "Puerto Rican History". Topuertorico.org. 13 January 1941. Retrieved 20 November 2011.
  46. La Gobernación de Jesús T. Piñero y la Guerra Fría

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