Privacy, super-injunctions and Twitter: what should we do?

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by David Elstein (open democracy)The emergence of a privacy law in the last dozen years, which has been a growing source of tension between the courts and Parliament, has now encountered an insuperable barrier: the parallel growth of social media on the Internet, where ordinary individuals can frustrate the injunctions that have become the weapon of choice in the battle for privacy. There is only one solution to the problem: new legislation.

In 1998, Parliament passed the Human Rights Act, designed to incorporate key elements of the European Convention on Human Rights, but leaving unresolved the implicit tension between the separate ECHR commitments to privacy and to freedom of expression.

Ryan Giggs. Image: James Adams
The only actual reference to privacy in the 1998 Act was: “everyone has the right to respect for his private life, his home and his correspondence”. Nonetheless, judges have treated this as a “right to privacy”, rather than a “right to respect for privacy”, and have built up a body of case law whereby injunctions blocking publication of newspaper stories are routinely granted where no obvious “public interest” can be detected by the judges.

A standard judicial formulation is that tittle-tattle cannot claim the protection of the “freedom of expression” clause in the Act: “what interests the public is not necessarily in the public interest”. As a result, hundreds of interlocutory (or temporary) injunctions have been granted since passage of the Act. According to an audit by The Independent, the large majority are granted to prevent the identification of children or vulnerable adults: a legitimate and appropriate use of the legislation. However, the next largest category is to bar the publication of the names of high-profile individuals, including 28 for men seeking to prevent the facts about extra-marital sexual activities being revealed.

These injunctions are typically “ex-parte”: in other words, the female who might be about to tell her story is not even represented in court, although her name – ironically – might well be published even as the applicant for the injunction succeeds in preserving his anonymity. Based on these one-sided presentations of supposed facts, judges are even willing to brand the female – in her absence – as a blackmailer if there is a suggestion that she has quoted to the male the cash amount she has been offered to tell her story (implicitly, they argue, inviting a higher offer).

These temporary injunctions are rarely brought to resolution, either by the applicant seeking to make it permanent (for which there is no need if the injunction is not being challenged), or by other parties – typically, the named female or a newspaper – trying to have it quashed. This kind of challenge is usually beyond the means of the female, and – if a newspaper is involved – editors know by now that, at trial, courts will rarely over-ride the granting of the injunction, unless there is some new evidence available: for instance, the fact of widespread availability of the information despite the injunction. A small number of these injunctions have been not only ensured anonymity for the litigant, but have themselves been made secret: the so-called super-injunctions. In one case – not involving privacy, but commercial secrecy – the oil-trading firm Trafigura managed to prevent The Guardian (and anybody else so inclined) from following up a question in the House of Commons about environmental damage caused by the company.
Widespread dismay at the notion of justice being dispensed in secret has led a high-powered legal committee, chaired by the top civil case judge in England and Wales, Lord Neuberger, to pledge that in future the media will be invited to witness the granting of injunctions that involve anonymity. Trafigura was acknowledged as an error. Meanwhile, both the super-injunctions and the anonymised injunctions have suffered growing public and political criticism, leading to online Twitter campaigns “outing” beneficiaries of injunctions, and an MP and a member of the House of Lords using the absolute freedom of speech that is a parliamentary privilege to name two of the litigants.

The Neuberger committee – along with most lawyers and politicians – had deplored, in equal measure, the online campaigns and the use of privilege: the Neuberger report even cast doubt on the long-established right of newspapers to report statements made in Parliament that might breach injunctions – a stance not calculated to win much media support. The committee’s criticism was undermined by the growing public realisation that the process of granting injunctions was itself unsatisfactory. In one case, Sir Fred Goodwin had persuaded a judge to grant him a super-injunction in relation to an allegation of an extra-marital affair, and – because of his notoriety as the chief executive of the Royal Bank of Scotland during its spectacular collapse – persuaded the court to keep secret the fact that it was a banker making the application.

It does not appear that the judge took into account that the affair was with a senior colleague, had not been reported to the RBS chairman and board, and as such that might well have been in breach of RBS corporate governance; and that Goodwin’s motive in seeking the injunction might well have been professional embarrassment as much as protecting privacy. Likewise, the other injunction breached in Parliament had been granted to the married Welsh international and Manchester United footballer, Ryan Giggs, to prevent a former Miss Wales, Imogen Thomas, revealing the details of their affair. It was the threat by Giggs’ lawyers to pursue contempt of court proceedings against thousands of tweeters on Twitter who had outed him that triggered the MP’s decision to name him in the House of Commons.

After the Goodwin revelation in the Lords, the injunction insofar as he was concerned was immediately lifted; though the name of his alleged lover remains protected by judicial secrecy. However, in the Giggs case, the injunction remains in place, at the behest of two separate judges, even though – before the outing in Parliament – he had been identified in a Scottish newspaper (English writs do not run in Scotland) and (according to subsequent research) 46% of the public already knew he was the footballer who had sought the injunction.

The extraordinary reasoning of the court was that the injunction was meant to protect Giggs’ family from harassment. Reports that Imogen Thomas had herself been harassed (as had journalists waiting outside the Giggs home) appeared to have no bearing, any more than the seeming basis for harassing Giggs having been his determination to bring proceedings against Twitter users. Although Twitter is based in California, where the 1998 Act has no status, Twitter is bound to provide to the Californian courts the names of Twitter account holders (if it has them), should a case be made out there that those seeking such details have legitimate grounds for suing – an English local authority has just won such an order in pursuit of a tweeter it claims committed libel.

A further surprising aspect of the continuing defence of the Giggs injunction by the court is that another Premier League footballer, John Terry, eventually lost the protection of an injunction after the judge concluded that his primary motive in gagging the press was to preserve his commercial income rather than defend his family’s privacy over an alleged affair. That Giggs – like so many Premier League footballers, eight of whom have secured “privacy” injunctions – has lucrative sponsorship contracts should have been a factor considered by the judge: one of his sponsors used to advertise its products with the strap-line “Ryan Giggs provides the perfect match for CYMA watches, with his role model attitude towards loyalty, fair play and discipline”.

Arguably, after the Terry case, no judge should grant a married Premier League footballer an injunction preventing press coverage of an affair until affidavits have been produced in court from all the player’s sponsors confirming that they would not alter their deals with him even if the story became public: which would at least eliminate protection of commercial interests as a motive for seeking injunctive relief.

The biggest problem with the way in which the judges have interpreted the ambiguities of the 1998 Act is that a possibly laudable preference for the rights of the individual against the prurience of the tabloid press has become a rich male hypocrite’s charter. Unfortunately, the judges cannot take into account the fact that only the wealthy are able to take advantage of their reading of the Act, and that the subset of the wealthy most interested in legal protection are straying husbands. Ministers cannot ask judges to interpret the Act differently: only a revision of the Act can get politicians and the judiciary out of the fix they are in.

One of the participants in the passing of the original legislation, Lord Wakeham, is firmly of the view that Parliament’s intention was that courts should only become involved in issues of privacy if the state was the supposed “invader”, rather than the media. Wakeham, a former chairman of the UK’s Press Complaints Commission, argues that the PCC (whose Code requires newspapers to demonstrate a “public interest” in any disclosure of private affairs) is the best place for aggrieved parties and editors to have their disputes judged.

The PCC has many critics, including within the media; and at first glance, the relevant clause in the PCC code seems almost identical to the wording of the Act: “everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”. However, the Code goes on to list the “public interest” grounds which newspapers can use to justify publishing private information, which include exposing crime and impropriety or preventing the public being misled or put at risk. Unlike the Act, the Code specifically states, in a separate section, that “there is a public interest in freedom of expression itself”.

Currently, despite the vast difference in costs, Premier League players overwhelmingly prefer to run to court for an ex-parte hearing to prevent publication of stories damaging to their reputation, rather than argue their case to the PCC, which will always seek to hear the matter in the round. If the 1998 Act were revised to embrace the detailed approach of the PCC Code, the courts, too, would err on the side of publication, except in rare circumstances where privacy issues clearly prevailed. Interestingly, it appears that – since the Giggs exposure – the flow of requests for privacy injunctions has dried up.

There are many people so disgusted with tabloid emphasis on “kiss and tell” stories, and so appalled at the criminal behaviour of the News of the World (and no doubt other tabloids) in mass hacking of mobile phone voice messages, that such a shift in the balance of outcomes would be unpalatable. Here we come to the crucial aphorism: “what is of interest to the public is not necessarily in the public interest”.

But the problem with this high-minded sentiment, so often expressed by lawyers, judges and politicians, is the implicit assumption that they – with their fine brains and well-tuned moral sensibility – can make those decisions for us. My own view – strongly influenced by the First Amendment to the US constitution, forbidding Congress passing any law “abridging freedom of speech” – is that it is for the press and the public between them to decide what should be published, and for anyone libelled or otherwise damaged by publication to take their case to court.

The European Court of Justice has recently refused to introduce the concept of advance notification by newspapers of intention to publish material affecting the private life of individuals. This is consistent with the approach of the US courts, which will almost never accept “prior restraint”, even in national security cases. “Publish and be damned” is what the Duke of Wellington said when threatened with revelation of his extra-marital activities: that surely should be the stance of legislators when they re-visit the Human Rights Act.
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