Jennifer O'Grady - Head of Agency

Head of Agency

Last week, agency friend Steve Kuncewicz, IP lawyer at Gateley ran a workshop for clients and staff about the impact of the ASA on online content. Today, he shares with us his thoughts on Twitter and the Super Injunction.

In the latest twist to the ongoing and very public row over whether or not celebrities should be able to obtain so-called “Superinjunctions” to restrain the press from reporting on details of their private lives, a Twitter User has apparently posted details of the parties involved in six superinjunctions over the course of the weekend.

The Twitter Account “@injunctionsuper” was set up in the name of “Billy Jones” on 8 May and has only posted six updates, but is already being followed by nearly 23,000 people. Some of the celebrities named, including socialite Jemima Khan, who is alleged to have obtained a superinjunction to stop details of her affair with a well-known TV presenter going public, have already gone on record to deny having obtained the Court Order, but this doesn’t appear to be doing anything to stop the online rumour mill.

Superinjunctions have never been far away from the news over the last few weeks even though they have had to fight for headlines with coverage of the Royal Wedding and the death of Osama Bin Laden.

Andrew Marr was the most recent public figure to admit that he had obtained a “Superinjunction” in 2008 to protect his family’s privacy by suppressing reports of his affair with a fellow journalist, and Twitter has been flooded with rumours after glamour model and Celebrity Big Brother winner Imogen Thomas won the right in the High Court to protect the anonymity of a premier league footballer with whom she was alleged to have had an affair. Many members of the Twitterati already have a very good idea of who he is, and @injunctionsuper claims to have removed all doubt over the course of the past 24 hours.

These cases, along with David Cameron’s recent public “unease” over Judges creating “a sort of privacy law whereas what ought to happen in a parliamentary democracy is Parliament, which you elect and put there, should decide how much protection do we want for individuals and how much freedom of the press and the rest of it” and the recent decision by Mr. Justice Eady in OPQ v BJM that saw him issue a “Contra Mundum” injunction enforceable worldwide and in perpetuity to prevent the publication of ‘intimate photographs’ of a married public figure after a woman tried to sell them for a ‘large sum of money’ have reignited debate over how far the UK’s developing privacy law should be able to restrict freedom of the press.

There are, as always, two sides to this argument – on the one hand, celebrities are increasingly turning to the law of privacy to suppress negative coverage, severely limiting the freedom of the press and depriving the public of information about which they may feel they have a ‘right to know.’

On the other, the press are also increasingly running stories which have nothing to do with ‘the public interest’ to fill column inches in an environment where the Press Complaints Commission is seen as largely powerless to take any real action to compensate a victim once a controversial story has been run. The recent “phone hacking” scandal and public apology from News International for their unlawful surveillance of several high-profile figures has shown how far the press may be willing to go to obtain a scoop.

Privacy law reached its high watermark (so far) in the now-infamous battle between Max Mosley and the News of the World in 2008 over allegations of Mosley’s involvement in a ‘Nazi orgy’ and the leaking of a video of the event online. Mosley was successful, winning damages of around £60,000 and setting out the basic ‘road map’ to the new approach to privacy law following the coming into force of the Human Rights Act in 2000.

The Human Rights Act brought the European Convention on Human Rights into English law and requires the court to take its provisions into account wherever possible. In privacy cases, the court must consider whether or not there was a ‘reasonable expectation of privacy’ in the information in question which can be protected by the Claimant’s Article 8 right to respect for private and family life (dependent in many cases upon whether or not the Claimant courted publicity) and then perform a ‘balancing act’ with the Press’ Article 10 right to freedom of expression.

The most important consideration in this balancing act is usually whether or not the information in question can be justifiably disclosed in the public interest. This does not cover information which is simply ‘interesting to the public’ and in Mosley’s case Justice Eady made the point that a publication which reveals sensitive information for the sake of ‘titillation’ or satisfying public curiosity can never be justified. In his opinion, ‘the sex life of any individual is essentially their own business.’

Even when freedom of expression sees the balancing act come down in the press’ favour, for example to expose illegal activity, to avoid the public being misled or to contribute to a genuine public debate, his will not allow the publication of ‘every gory detail’ and in particular, stories involving the sex lives of those in the public eye will normally be much harder to justify.

Nevertheless, the start of 2010 saw then-England captain John Terry at the centre of the privacy law debate after obtaining a ‘superinjunction’ banning any reporting of his alleged extramarital affair with lingerie model Vanessa Perroncel as well as any reference to the fact that the injunction itself even existed. The decision in Terry’s case came amidst increasing criticism of what was described as a ‘back door privacy law,’ and the ‘superinjunction’ was overturned after Mr. Justice Tugendhat found it to be unnecessary – the information which it covered was already relatively widely known within the sport, and in his opinion, Terry applied for the injunction more to protect his commercial interests and sponsorship deals rather than his private life.

If a claimant becomes aware of impending negative press attention and has a very strong case in either defamation or privacy against the publisher for which an award of damages would never truly compensate them if the details became public, then an, injunction may well be the only realistic option. They are not easy to obtain, ‘superinjunctions’ even less so, and are only granted in cases where allowing the publication to go ahead will cause more harm to the claimant than restraining it would do to the newspaper.

However, an injunction or ‘superinjunction’ may never truly kill a story. In December 2009, Tiger Woods obtained an injunction against the reporting of further details of his private life being disclosed in the British press in the wake of his very public fall from grace. However, much of the information and accusations in question were already available on a number of US websites accessible from the UK, leaving many commentators wondering what the point was.

Similar points have been made in relation to the OPQ Case – an injunction was made which is enforceable against the entire world and in perpetuity. This kind of order is at the absolute extremity of the Court’s jurisdiction and was granted on the basis that publication of the information protected by the order could have a very serious effect on the mental health of the Claimant and his family.

In the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as commodities broker Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months. It was for this reason that the BBC’s attempt to keep the identity of the Stig secret through an injunction failed – his real name was being widely referred to on the internet and in accounts filed at Companies House.

However, what many appear to be forgetting is what the practical effect of an order granting a superinjunction actually is. The Order will usually contain a penal notice which states very clearly that not only will the Respondents be in breach and potentially guilty of contempt if they reveal any details of the injunction, but so will any third party who is not a respondent in the proceedings but is aware of the injunction and then goes on to leak its details.

This will cover any comments made on social networks and despite what some commentators are saying this morning, anyone who publishes details on a social networking platform such as Twitter is not immune from the consequences of what they post.

“Billy Jones” may think that he is able to hide behind a false user name, but if he has posted any information on genuine superinjunctions then there is nothing to stop anyone who has obtained one applying for an order from the Court to reveal their identity, pursuing them for a breach of privacy and then applying to the Court to have them committed for contempt after breaching the terms of the Order itself.

In practical terms, the Celebrities and Public Figures involved will probably not want to spend even more in legal fees pursuing every user of Twitter – and there are a lot of them – who have repeated the rumoured details of the various superinjunctions in force. The Court, however, may respond much more favourably to contempt proceedings, especially after a recent case which saw two national newspapers convicted of contempt after posting photos of the defendant in a murder trial posing with a knife on the morning of the hearing.

Twitter as a platform is shielded from proceedings being taken against them if they immediately remove tweets which contain unlawful material when notified and take no action to vet the content of any such posts – this lack of editorial control is not only part of their business model (they could not feasibly check every tweet to ensure that it doesn’t cause a problem) but key to their defence as a “mere conduit” which makes material available over the internet but has no control over the content itself under the Electronic Commerce Regulations 2002.

The Courts will now have no choice but to really get to grips with the practical issues which social media commentary creates in ongoing proceedings, especially those which are intended to remain secret. The last few years have seen criminal cases involving obscenity in blogs, harassment and cyber-bullying through Facebook and the relatively new offence of misuse of a public electronic communications network – the notorious “Twitter Joke Trial”.

Each of these cases is a salutary lesson that although social network users can hide their presence through false profiles and may not be worth pursuing if they simply wouldn’t be able to pay damages or costs in a civil claim, they are not immune from sanction and it’s probably only a matter of time before the Twitterati are held accountable for the content which they post.

As much as @Injunctionsuper’s tweets may be interesting to the public rather than in the public interest, they may soon become very interesting to the Courts.

To keep up to date of the changes in law surrounding social media, check out his blog. If you’d like more details on future seminars, please email NB: places are limited.