Gag order

For the song by Radiohead, see COM LAG (2plus2isfive).

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 in some cases, passed onto any unauthorized third party. The phrase may sometimes be used of a private order by an employer or other institution.

Gag orders may be used, for example, to keep legitimate trade secrets of a company, to protect the integrity of ongoing police or military operations, or to protect 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.

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

Examples

Australia

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

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.

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.

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.

On November 13, 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 November 20 Eyal Golan released a press statement announcing he was the suspected singer.

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. These claims in the media were later denied.

North Korea

On September 21, 2013, the Japanese newspaper Asahi Shimbun reported information from a high-level North Korean defector who said that 9 members of the North Korean Unhasu Orchestra had been executed for making pornography, and that the execution was designed to cover up the involvement of Ri Sol-ju, a former member of the orchestra and now the wife of North Korean leader Kim Jong-un. North Korea responded by saying that 'reptile media' had insulted its "highest dignity" by spreading lies. Sources inside North Korea reported it had become a major scandal with many rumors spreading despite an official gagging order.

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, witnesses, victims, or to protect national security. 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. This criminal case has been thought to be the first in which a gagging order was imposed.

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."

In Spring 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 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.

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. The government has issued hundreds of thousands of such NSLs accompanied with gag orders. The gag orders have been upheld in court.

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.

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.

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. In addition, this information can be used to the media's advantage, as they can decide to post negative information about a person who is involved with a case and who has been issued a gag order, knowing that that person cannot comment on the publicly reported information due to the gag order being imposed on this person. 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. 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.

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.

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.

California

The California Electronic Communications Privacy Act mandates that in certain cases concerning electronic search warrants that "[...] The court shall issue the order [prohibiting any party providing information from notifying any other party that information has been sought]".

Puerto Rico

Main article: Gag Law (Puerto Rico)

In 1948, and while Puerto Rico was a colony of the United States of America, a Bill was brought before the Puerto Rican Senate to restrain the rights of the Puerto Rican Independence Party and the Puerto Rican Nationalist Party movements in the Island. The Senate at the time was controlled by the Partido Popular Democratico and presided by Luis Muñoz Marín. The Bill, also known as the "Ley de la Mordaza" (Gag Law) was approved by the Puerto Rican legislature on 21 May 1948. The law made it illegal to display a Puerto Rican flag, to sing a patriotic tune, to talk of independence, and to fight for the liberation of the island. The Bill, which resembled the anti-communist Smith Law approved in the United States in 1940, was signed and made into law on 10 June 1948, by the U.S.-appointed governor of Puerto Rico Jesús T. Piñero and became known as "Ley 53" (Law 53). Law 53 stated that it would be a crime to print, publish, sale, to exhibit or organize or to help anyone organize any society, group or assembly of people whose intentions were to paralyze or destroy the insular government. Anyone accused and found guilty of violating Law 53 could be sentenced to 10 years of prison, fined US$10,000 dollars, or both. According to Leopoldo Figueroa, a 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.

See also

• Compromise agreement
• DA-Notice
• Editorial independence
• Franchise fraud
• Freedom of speech
• Gag rule
• Injunction
• Media blackout
• Media transparency
• Never say anything
• Prior restraint
• Publication ban
• Public Interest Immunity
• Rivercrabbing
• Super-injunction
• Temporary restraining order
• Whistleblower
• Puerto Rico's Gag Law