Regaining control of personal data following a breach - Injunctive relief

Sometimes these data breaches are a result of personal data being sent to the wrong party. In most cases the breach can be contained and the data retrieved from (or deleted by) the unintended recipient, but what happens if the recipient doesn’t delete it and tries (or threatens) to use the information for their own gain?

This is where the courts may order injunctive relief to restrict third parties, known or unknown, from using or distributing the data.

Following recent success obtaining injunctive relief in a data protection case, rradar Associate Leigh Payne, provides the answers to  commonly asked questions  about injunctions.

Injunctions: A brief overview

What is an injunction?

An injunction is a specific type of court order that compels a party to do, or not do, a specific act. An injunction is usually obtained against a named party, but can be ordered against ‘Persons Unknown’ if the offending party cannot be identified.

What are the different types of injunctions?

Injunctions are generally categorised by either purpose or remedy.

There are two categories of purpose – interim and final:

  1. An interim injunction is used to ensure that justice can be done at trial. For example, the court may be satisfied that whilst awaiting trial a party could do (or not do) something which would render the outcome of the trial meaningless, therefore that party may be compelled by the court to take (or not take) a particular action. An interim injunction can also be used to freeze assets or prevent the destruction of evidence; again, the purpose being to maintain the status quo for trial.
  2. A final (or perpetual) injunction is the court’s final word on the matter. An interim injunction can be made final at trial if it is the remedy being sought in the action.

There are also two types of remedy – mandatory and prohibitory:

  1. Mandatory injunctions compel a party to do something.
  2. Prohibitory injunctions prevent a party from doing something.

You can therefore have an interim mandatory injunction, a final prohibitory injunction, or any combination of the purpose and remedy types.

There is one other type of injunction which sits outside these categorisations, and that is a precautionary injunction, which is obtained to prevent a party from committing a wrong that is believed will otherwise happen.

What are the benefits of an injunction?

Injunctions are powerful tools used to compel persons to do (or prevent them from doing) something because the punishment for breach of an injunction is imprisonment, confiscation of assets and/or a fine. An injunction can be obtained quickly and is immediately enforceable.

In what circumstances can a party apply for an injunction?

The party seeking an injunction will need to prove to the court that it is entitled to injunctive relief. This proof will need to take the form of evidence that the other party has in some way infringed a legal or equitable right and that the court has jurisdiction to make an order in respect of that infringement.

Injunctions directly bind a person’s freedoms therefore they are not granted lightly by the court and there are strict procedures in place to be followed. If there are other remedies available (for example, if damages can be awarded instead of an injunction) then it is unlikely that an injunction will be ordered. Similarly, if the offending party is willing to sign a formal undertaking, then the court will be unlikely to order an injunction.

What is the procedure for applying for an injunction?

The procedure for applying for an injunction will vary depending on the type of injunction and the circumstances in which it is being obtained. For example, the party seeking an injunction may be required to give notice to the offending party of the injunction being sought, or it may not be appropriate in the circumstances to do so. Generally, there will be a hearing in court in which the evidence is properly considered by a Judge. Your solicitor will advise you what is the proper procedure in the circumstances.

How long does an injunction last?

An interim injunction will only ever last until trial. Final injunctions are usually obtained for a specific period of time, but they can be renewed, or even granted indefinitely in some situations.

How much does it cost to take out an injunction?

Injunctions take a significant amount of work to obtain, and are often needed urgently. For that reason, they can come with a hefty price tag and would therefore be considered a last resort and sought only when absolutely necessary. If you do require an injunction, your solicitor will advise you of the estimated costs, allowing you to make an informed decision as to whether to proceed.

Need advice?

If you have any questions concerning data breaches or how to put in place an injunction as discussed in this blog post, please contact our Cyber, Data and Information Law team.