22 May 2011
In the last couple of weeks I have been busily giving my views as a lawyer on the issue of so-called “super-injunctions” being breached on Twitter. I’ve been quoted extensively in the Telegraph (here, here, here and here) and by themediablog.co.uk.
The highlight of the week was a brief appearance on live TV, courtesy of Al Jazeera English news, on Friday night, where I was billed as a “Media Lawyer” – media whore, more like, as some of my friends quipped on Facebook. Fair enough, it was my second live broadcast of the week, after Radio 5Live’s On the Money on Sunday evening.
I nearly made it onto Newsnight (only stood down at 9pm) as the story took an extra twist to reveal that “CTB” the “anonymous” footballer with a super-injunction against Imogen Thomas and the News of the World (case report here) had launched an action against Twitter, Inc. itself and persons unknown – most likely, as I speculated on Twitter, for an order to disclose the identity of those people openly flouting the injunction. Since then, CTB’s lawyers, Schillings, have confirmed that this is correct.
This led to a phone call with a journalist from Newsnight who effectively auditioned me over the phone to see if I would be suitable to go on the programme that evening. “But what do you think should happen” she asked me, after I’d explained what I thought CTB’s legal advisors were up to.
I hesitated. I was happy to give a personal view as to the law, as a lawyer, but the politics of it all, are more difficult.
I do think that the judiciary are being unfairly criticised for granting these super-injunctions and it is hypocritical of politicians to hide behind parliamentary privileged to flout them as was done last week by Lord Stoneham.
The legal basis for the super-injunctions is a long standing law of confidence which has existed for centuries, bolstered further by the European Convention on Human Rights (around for decades) and its English law counterpart, the Human Rights Act 1998 – the clue is in the name. Before the invention of the internet and the rise of web 2.0 self-publishing, “gagging orders” could simply be slapped on media outlets as appropriate to prevent widespread dissemination, let alone speculation. Before Twitter, the rise of chatrooms and comment facilities on blogs meant that even reporting the existence of an injunction was likely to provoke speculation as to what was being banned – hence the super-injunction.
As explained in the judgment of Mr Justice Eady in the CTB case, the courts are faced with a situation in which all human rights are given equal treatment and that the right to freedom of speech is no greater than a person’s right to privacy. Instead, the politicians have left it up to the courts to decide where the balance should lie.
Faced with the task of making a judgment in favour of one of two equal rights, the courts often try to decide on the basis that “public interest” tips the scales. Or as Eady, J. put it in the CTB case: “Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or … would publication in some way prevent the public from being seriously misled?” [para 25] – in this case, he went on to note: “As in so many "kiss and tell" cases, it seems to me that the answer…is not far to seek. Indeed, it was not even argued that publication would serve the public interest.” [para 26].
Added to this, the CTB case has unpleasant undertones of blackmail and the worst excesses of an intrusive tabloid newspaper, with the suggestion that although the relationship between Thomas and CTB was over, she was attempting to engineer a meeting so they could be snapped together, for the benefit of the ensuing report.
The injunction obtained by Sir Fred Goodwin, whose identity was revealed by Lord Stoneham in the House of Lords last week, and the case recently described by a “leading blogger” may have different characteristics, but in both cases a judge heard the details of the argument and decided, rightly or wrongly, that an order should be made.
Parliament has given no detailed guidance to the courts as to how they should balance the right to freedom of speech with the right to privacy, nor has it made any attempt to define what counts as “public interest” in such situations.
In these circumstances, it is at best arrogant of parliamentarians to hide behind privilege to breach injunctions, and at worst reckless. Constitutional balance depends on mutual respect: imagine the outcry of MPs and Lords if the courts refused to implement a new law on the basis that the judges simply disagreed with it on political or moral grounds.
Mark Easton’s blog comments: “Ex-Sun editor Kelvin MacKenzie and the publicity guru Max Clifford probably touch a nerve when they suggest the judiciary are the last people the public would want as adjudicators on public morals.”
But this entirely misses the point - the judiciary appear to be far more modern and in touch with public views on the question of morality than tabloid newspapers, or others who make a living out of publicising such tawdry scandals, such as Max Clifford. If anything the judiciary has done its level best to interpret the ever loosening laws on private sexual conduct as a green light to its interpretation of “public interest”.
However, this can all be resolved if politicians decide to grasp this particularly thorny nettle and legislate on the meaning of public interest – which of course they will not, any time soon, as they will simply be accused of protecting their own indiscretions from public view – as happens in France, which we’ve seen, can lead to disaster.