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Superinjunctions, privacy, and social media

By David Banks

 
When I began training as a journalist in 1987 and bought the requisite copy of McNae it was a slim volume that could be folded into your pocket on visits to court. The last edition, the 20th came in a shade under 700 pages, despite the best efforts of Mark Hanna and myself to slim it down. As well as successive governments’  enthusiasm for legislation that impinges on the media, one of the other reasons for its growth in size has been the emergence of new legal threats like privacy.

This has never been in the news as much as it has in recent months, with barely a week going by without claims of celebrities hiding behind so-called ‘superinjunctions.’ I say so-called because some of the reporting of privacy and injunctions has made the mistake of labeling any injunction a superinjunction.

For clarity, a superinjunction is an order which prevents details of the claimant being discussed, but also prevents publication of the existence of the injunction itself.

Many of the orders described in the media as ‘superinjunctions; were, in fact, anonymised orders – ie the media were freee to say an order had been obtained by, for instance, ‘a Premiership footballer’, but they could not say who he was or give any details that might identify him or others involved in the case.

In fact since 2010 only two superinjunctions have been granted, so they are not perhaps, as common a threat as some might perceive.

Nevertheless, the effect of a superinjunction, when granted, can be severe. This was demonstrated by the Trafigura case in 2009, when the Guardian was injuncted by the oil trading company over allegations concerning the dumping of toxic waste off the Ivory Coast in 2006.

When the Guardian was prevented from reporting a parliamentary question on the affair, editor Alan Rusbridger used Twitter to alert readers to the gagging order. There followed a ‘Twitterstorm’ as followers quickly found the question in parliamentary order papers and so revealed Trafigura’s name.

It is this ability of social media to effectively frustrate injunctions that has led to the recent spate of publicity surrounding privacy. The latest case involved the Manchester United footballer, Ryan Giggs, who was the subject of an anonymised order. However, his name was tweeted by 75,000-plus Twitter users and he was also named during parliamentary debate by MP, John Hemming.

This has led to some, rather foolish calls for Twitter to introduce a delay function so that tweets can be checked before publication – with 175 million users and counting that would be some moderation task.

The courts have made an interesting distinction though between social media exposure and coverage in the traditional press. When tabloid newspapers asked that the injunction on Ryan Giggs be removed because of its widespread breach on Twitter and his naming in Parliament, the judge refused. Mr Justice Eady said that  the injunction still served a purpose in preventing harassment of the footballer by media, which was different to exposure on web media.

This sets up a very interesting confrontation between the courts, social media and the traditional press. The traditional press has been keen to preserve the sort of ‘kiss’n’tell’ story that has been their bread and butter  for so many years and which is now threatened by courts that take the view that sexual relationships, no matter how fleeting, are confidential and therefore private.

There may be some frustration on the part of traditional media that Twitter users are able to publish with apparent impunity the sort of material they cannot print because of an injunction.

There is some question as to how Twitter users got hold of the information originally though. The courts are aware that were they to allow injunctions to be lifted because of social media exposure, then it would be a simple matter for papers to use Twitter as an ‘injunction-buster’ simply by leaking injuncted material to users.

The other very interesting conflict that is being created is the clash between concepts of privacy that have grown out of the European Convention on Human Right and US beliefs in the fundamental right to freedom of speech.

How this conflict will be resolved is far from certain, but it the Giggs case is unlikely to be the last where social media flexes its muscles and leaves traditional media and the courts looking a little flat-footed.

David Banks is Senior Lecturer in Media Law at the University of Sunderland and a Member of the NCTJ Media Law Examinations Board. He is the co-author (with Mark Hanna) of McNae’s Essential Law for Journalists.

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Recent Comments

  1. Mark Warby QC

    Two points. First, the use of the label ‘super-injunction’, and secondly the Trafigura case. The term ‘super-injunction’ is what some philosophers call a ‘boo word’: it casts a negative shadow over whatever it is applied to. As you say, David, the term was initially coined, by someone, to describe an order that prohibits reporting of the very existence of the case. The fact is, as has gradually emerged even in the public press, that there have been very few indeed of these. So now ‘super-injunction’ has come to be applied to any injunction which anonymises the claimant. It is hard to know, though, what critics think the courts should do if they find that a claimant deserves protection. If they both name the claimant and, in a judgment, describe the information that must not be published, the exercise is pointless. If the claimant is named, the information that is protected cannot be put in a judgment. Is that what critics would prefer? As for Trafigura, the case has been widely misreported. The Master of the Rolls Committee’s report sets out the facts. Mr Farrelly MP disclosed the information the court had held should be protected, at a time when a further hearing was due to be held in court. The MP was allowed to do this by the Parliamentary authorities, but only because the effect of anonymising the claimants was that the authorities had failed to pick up the fact that the case was pending. Otherwise, the Speaker probably would have ruled out the question, leaving it to the court to decide whether the injunction should continue. It is also worth noting that the injunction was quite specific, and did not bar disclosure of allegations about waste dumping, but disclosure of a specific, legally privileged, report on the issue. It seems we will never know what decision the court would have reached if the issue had been argued.

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