The media enjoyed The Guardian’s success last week in securing an amendment to an injunction granted to commodities trader Trafigura, which otherwise might have gagged reporting of Parliament.

Claimant law firm Carter-Ruck – so often the media’s nemesis – initially said the reporting of a Parliamentary Question about the injunction, by MP Paul Farrelly, would place the newspaper in contempt of the court, but the firm later agreed to amend the injunction on behalf of its client.

The draconian effect of the original injunction affronted MPs and incensed the Twitterati, triggering a high-level review of injunctions in general.

It’s an issue that affects all media, not just the nationals. Local newspapers, for example, regularly find themselves gagged by injunctions and secrecy orders which cannot be cost-effectively challenged. The result? A black hole of secret information on topics as wide-ranging as alleged hospital negligence, corporate wrongdoing and injustice in the family courts.

It can only be a good thing, therefore, that Ministers have agreed to review the appropriateness of so-called ‘super injunctions,’ like the original Trafigura order based on grounds of confidence, which prohibit any mention of the fact that a gagging order has been made, let alone any mention of the order’s subject matter.

Commentators, including The Guardian’s editor, Alan Rusbridger, bemoaned that they had thought prior restraint injunctions were “a thing of the past” in English law. But it will not help the cause for reform if the true, more complex, legal position is glossed over.

Prior restraint is actually only a thing of the past in libel cases where the publisher contends the publication is justified. In such cases, it is true that courts generally refuse to issue a prior restraint injunction because the claimant’s remedy for harm to reputation is considered to be in damages and vindication following trial. Here, the axiom ‘publish and be damned’ still applies, as established by the time-honoured case of Bonnard v Perryman (1891).

In contrast, in privacy and breach of confidence cases, prior restraint injunctions have proliferated, because judges see a need to preserve the status quo by granting a prior restraint gagging order until contested issues can be aired at trial.

In this type of case, an injunction is considered a key remedy while damages are only secondary, because money is poor compensation for privacy that has already been lost forever.

The House of Lords reviewed prior restraint in 2004, in the case of Cream Holdings Ltd v Banerjee, and held that where publication is likely to harm a person’s interests in a way that cannot be adequately restored by damages, prior restraint gagging orders may well be necessary and lawful, even bearing in mind the media’s freedom of expression rights under Section 12(3) of the Human Rights Act and Article 10 of the European Convention on Human Rights.

Commentators expressing surprise that prior restraint is still part of English law are missing the point. A review of injunctions will get nowhere by turning a blind eye to the reality of established privacy law, which has burgeoned under the binding influence of European law.

Since claimants will inevitably argue, with some force, that prior restraint is necessary to preserve privacy and confidence pending trial of the issues, it is hard to see much changing after the current review of injunctions.

To bolster democratic scrutiny, we may see new checks and balances instituted, such as a central register of injunctions and an end to the use ‘super injunctions’ except in the most exceptional cases. But it would be unrealistic to predict the end of prior restraint.

Nevertheless, the free-speech victory in the Trafigura affair is still something for the media to savour, even if pre-publication gagging orders continue to be lawfully commonplace.