Communications Law/2011 - Volume 16/Issue 4, 1 November/Articles/Twitter undermines superinjunctions - (2011) 4 CL 136-139

Communications Law

(2011) 4 CL 136-139

1 November 2011

Twitter undermines superinjunctions

Ursula Smartt

Associate Lecturer in Media Law at the University of Surrey; author of Media and Entertainment Law (2011, Routledge)
© Bloomsbury Professional Limited 2011

Media & Communications: Information Technology and Telecommunications
English courts have long recognised a reasonable expectation of privacy; though Glidewell LJ in the case of the actor, Gordon Kaye, did not affirmatively consider and decide whether there is a right of privacy in English law, when giving the leading judgement:

'It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.'1

Bingham LJ, agreeing, said that, 'this case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.'2
Common law generally protects the disclosure of confidential information when the necessary requirement can be established that the information has the 'necessary quality of confidence'.3 But disquiet has been expressed in some legal quarters about the way in which the law of privacy and confidentiality has developed since the introduction of the Human Rights Act 1998, particularly concerned with maintaining a balance between privacy and freedom of expression (arts 8 and 10 ECHR).
English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which acknowledges the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives.
The law no longer needs to construct an artificial relationship of confidentially between 'impostor' and the confider. Sedley LJ stated in Douglas v Hello! Ltd,4 that privacy itself can be recognised as a legal principle drawn from the fundamental value of personal autonomy -- though arguably this authority has been challenged in more recent cases. The remedies available in an action for breach of confidence can vary considerably, and it is generally left to the court's discretion as to which particular remedy to award, including an injunction, an order for delivery up or destruction, an account of profits or damages. The purpose of this article is to examine the way in which the disclosure of private and confidential information applies to social media networks.
On May 9, 2011, some people using the social networking site Twitter published the names of celebrities alleged to have obtained 'superinjunctions' (see below). This led to some calls for an overhaul of Britain's privacy laws. Subsequently, a Twitter user (adopting a pseudonym) named celebrities who had allegedly taken out secret gagging orders.5 That Twitter account quickly gathered 55,000 followers, detailing six cases of actors, television presenters, a chef and a footballer in an apparent effort to undermine the court orders. Many thousands of Twitter users subsequently breached the privacy orders by re-tweeting the banned names, particularly of the footballer, known at that time only as CTB, who was alleged to have had an extramarital affair with Big Brother contestant Imogen Thomas.6
The breach on May 10, 2011 coincided with a European Court of Human Rights ruling in the case of the former President of the Formula 1 racing organisation, Max Mosley, who had argued Britain was failing to give remedy to people whose privacy had been breached.7 Mosley had argued for the introduction of a pre-notification requirement by media organisations, which the Strasbourg court had ruled inappropriate.
A superinjunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.8 Another order, usually granted by a family court, is an anonymised injunction which is an interim order that restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated. The media's generic term for both such High Court orders are 'superinjunctions', known in press circles as legal 'gagging orders' that not only block the media from reporting the details of a story, but also prevent journalists from even mentioning the existence of the injunction.
Mr Justice Eady, well known for his decisions on superinjunctions, is one of three specialist 'media' judges in the High Court along
(2011) 4 CL 136-139 at  137

with Mr Justice Tugendhat and Mrs Justice Sharp. It is common practice that applications are often heard by this small circle of judges because they are media specialists who also hear libel cases and applications for injunctions to restrain publication.
There has been much concern (also addressed by Lord Neuberger's committee -- see below) that superinjunctions are being applied for and granted far too readily -- especially to the rich and famous who have the means to do so. Since the case of John Terry, the Chelsea footballer, in January 2010, at least two known superinjunctions have been granted. One was set aside on appeal,9 the other was granted for seven days for anti-tipping-off reasons and was only granted on a short-term basis.
The latter injunction concerned an order made by Mrs Justice Sharp in DFT v TFD [2010]10 concerning a blackmail case in which a woman was threatening to make public private and confidential information concerning a sexual relationship with the claimant unless she was paid large sums of money. An injunction had been granted on September 9, 2010, restraining publication of the private information with an anonymity order attached, prohibiting the fact that the order was made (superinjunction) to stop the 'tipping off' of the defendant prior to service. When the claimant argued for continuation of the anonymity and of the superinjunction, this was by The Guardian and other representations from the media.
Sharp J provided a short summary of the claimant's article 8 rights and said that the article 10 rights of the defendant appeared to be extremely weak ('if they are engaged at all').11 As a result, she had no doubt that the claimant was entitled to the continuation of the substantive anonymity order to avoid 'jigsaw identification'. The order was accompanied by a number of 'privacy provisions' sought by the claimant on the basis that if he was identified by name there was a serious risk that the information would emerge and the purpose of the order would be frustrated. But the judge refused to continue the superinjunction element of the order because the matter (of blackmail) was of serious public interest. Sharp J considered the anonymity provisions sufficient to protect the claimant's privacy rights.
DFT v TFD is evidence that superinjunctions are now only being granted by the courts for very short periods and seemingly only where the level of secrecy is necessary to ensure that the whole point of the order is not destroyed. Though there has been an increase in the number of cases which are anonymised. This has caused confusion in some Court of Appeal decisions with privacy and anonymity aspects where such orders have been wrongly labelled as 'superinjunctions'. In anonymised orders, the court has to provide a reasoned judgement for its decision.
Public interest can be particularly heightened when injunctions concern celebrities who often go to extensive (and expensive) lengths to stop reporting of various activities. The developments come amid growing political debate over privacy law and the efficacy of injunctions issued by English courts in the Internet age. The Prime Minister, David Cameron, even announced in Parliament that he was uneasy about judges granting injunctions without the say-so of Parliament.12
On May 16 this year a Manchester United football legend was named by the media alleging who was behind the computer-generated superinjunction initials 'CTB'. This was followed by Liberal Democrat MP John Hemming who wrong-footed the Speaker of the House of Commons, John Bercow on May 23 during parliamentary question time, by naming the footballer as Ryan Giggs, thereby instantly opening the floodgates to widespread reporting by the mainstream media. Hemming argued that he had availed himself to parliamentary privilege and that the footballer had already been identified by more than 75,000 'tweets.'
Eady J subsequently ruled that it was 'not appropriate' to vary the CTB injunction, restraining the News of the World from identifying 'a footballer' who had allegedly had an affair, even though his identity had been revealed on the Internet and by now, in Parliament.13 In the meantime, News of the World had published an article identifying 'Big Brother' contestant Imogen Thomas who claimed she had had an affair with the footballer. Strictly speaking, the footballer still cannot be named due to the injunction in place, protecting the footballer's wife and family from intrusive and distressing invasion of their privacy.14 More Twitter frenzy followed, in spite of the judge's ruling that there was no legitimate public interest in publishing the story. On June 5, The Sun exposed 'love rat' Giggs for having a secret affair and eight-year relationship with his brother's wife.15
At the same time, the footballer's lawyers filed a disclosure order against Twitter Inc to release information regarding the publication of information by 'persons unknown' on their Twitter accounts. Arguably, the Twitter posts had clearly undermined the CTB superinjunction, particularly by the account holder named 'Billy Jones' who may well face prison or an unlimited fine for being in contempt of court if he or she is tracked down and named by Twitter Inc.16
David Cameron, facing an increasingly aggressive tabloid campaign to stop the high court granting injunctions protecting the privacy of celebrities, said the current position was not sustainable, announcing a joint Parliamentary committee to examine the complex related issues of privacy, injunctions and the regulation of the internet.
The very latest superinjunction scandal came to light at the end of October 2011, now aptly known by its acronyms as AMM (Aston Martin Man) v HXW (His ex wife) -- or better 'the Jeremy Clarkson' superinjunction.17 TV 'Top Gear' personality Clarkson had applied for an injunction in September 2010 to restrain the (book) publication by his ex-wife writing about their relationship and claiming that they had a sexual affair after he remarried. Edwards-Stuart J granted the first injunction on September 21, 2010, especially after hearing that the woman was trying to blackmail Clarkson by threatening to expose their relationship unless he paid a 'very substantial sum' of hush money. The hearing was in private and the application was not served on any media or other third party. HXW, however, subsequently named certain journalists; for this reason the original order was served on Associated Newspapers Ltd ('ANL'), publishers of the Daily Mail. 'Aston Martin Man's' solicitors were then approached for comments about the injunction. Not surprisingly, the 'Clarkson superinjunction' reached the twittersphere.
On September 30, 2010, the Daily Mail published an article headlined: 'TV celebrity wins court order gagging his ex-wife.' On October 4, 2010, Tugendhat J extended the injunction, reiterating in the order that the identity of the two parties must not be disclosed.
On October 27, 2011, Top Gear presenter Jeremy Clarkson lifted his own injunction by telling the Daily Mail that these 'gagging orders' are 'pointless.' His ex wife, Alexandra Hall, was subsequently seen on an ITV Adrian Chiles's 'Sunday Night Show'
(2011) 4 CL 136-139 at  138

with her publicist, Max Clifford, also giving numerous interviews to various 'red tops'. Clarkson told the Daily Mail: 'Most importantly, injunctions don't work. You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter and the internet. It's pointless.'18
Other celebrities who have since been named for their indiscretions on Twitter (in spite of superinjunctions in place) have requested court orders forcing the website to disclose the identity of author-tweets. Twitter will argue that they do not have liability as an intermediary as long as the site takes appropriate measures to prevent the publication of illegal material as soon as the site becomes aware of the infringement. Twitter's lack of legal presence in the UK is an additional complicating factor in enforcing any UK court orders over the California-based company.
That said, a US court ordered Twitter in May 2011 to hand over the personal details of a British user. Three councillors and an official at South Tyneside Council subpoenaed Twitter in a Californian court in a bid to reveal who was behind an anonymous whistleblowing blog called 'Mr Monkey'. The action, believed to be the first case brought by British claimants, raised further questions about free speech on the Internet and the possibility that celebrities and corporations could head to the US to unmask users who break superinjunctions or make libellous comments.19
Debate about privacy laws intensified as more superinjunctions were issued, challenged increasingly by the media under article 10 ECHR, the right to freedom of expression. In reality, there are numerous postings on social media sites and elsewhere on the Internet, most of which are inaccurate.
One challenge to a superinjunction came from Private Eye editor, Ian Hislop, who dared to contest a contra mundum injunction concerning Andrew Marr. Following the challenge, Marr, presenter of Radio 4's 'Start the Week' and the 'Andrew Marr Show' on BBC1, decided to speak out about his own injunction in April 2011 and, ironically if only technically, breaking his own injunction. He told the Daily Mail: 'I did not come into journalism to go around gagging journalists. Am I embarrassed by it? Yes. Am I uneasy about it? Yes.' Marr said the injunctions seemed to be 'running out of control'.20
In Marr's case, Eady J had issued a contra mundum order in January 2008 to prevent publication of material about the broadcaster's private life, thereby suppressing reports of Marr's extramarital relationship with a fellow journalist five years earlier. At the time, he believed he had fathered a child with the woman and made maintenance payments until he discovered later through a DNA test that he was not the girl's father. Andrew Marr became the first public figure voluntarily to admit trying to conceal his infidelity.
When granting superinjunctions the courts are bound by the Human Rights Act 1998 under which the person seeking anonymity must first establish that their right to respect for private life under article 8 ECHR is engaged. Secondly, it has to be established that relief sought is appropriate, having regard to article 10 of the Convention and the matters set out in section 12 (3) of the 1998 Act. The test is whether the applicant has a reasonable expectation of privacy in relation to the information in question. The question is objective, as Lord Steyn identified the emerging principles in Campbell v MGN [2004] as 'the new methodology' to be applied by the courts where both article 8 and article10 were engaged.21
Where the protection of family members, such as children, is involved, this 'ultimate balancing test' requires an intense focus on the comparative importance of the specific rights of a child.22 Under section 12(3) HRA, an injunction will not be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. Usually the court will also have regard to the PCC's relevant privacy code in coming to its finding.
In January 2010 former England football captain John Terry had asked the High Court for a superinjunction to cover up his alleged affair with a French lingerie model which did not only prevent reporting of the affair but even reporting of the existence of the injunction itself. After initially granting the injunction, Tugendhat J overturned the decision a few days later after a media outcry led by the The Guardian against media restrictions by the courts.23 This had the opposite effect to the one Terry was hoping for, resulting in blanket coverage in the tabloid press for days.
Is there still something to be achieved by these superinjunctions to stop 'kiss and tell' stories being revealed in the press by the rich and famous? Or -- in Charlie Brooker's words writing in his satirical column in the Guardian: 'Winning a superinjunction no longer guarantees super-anonymity. In fact, it delivers the opposite. Most cases we're learning about aren't shocking corporate coverups but dreary "shag-and-tells"'.24
In view of information now being leaked by electronic media and social networking sites, are such court orders futile because they will ultimately not protect the parties to keep past relationships private? The courts will argue that there is still something to be achieved by such injunctions as there is a need for these orders to prevent harassment and unjustified intrusion into the applicants' private and family lives. At the same time, as both Eady J and Tugendhat J have ruled in a number of judgements, such injunctions should not disproportionately benefit male footballers and other celebrities. There should be no stereotype to categorise claimants in privacy actions.
A number of injunction applicants include women, children, gay or lesbian individuals and most such 'anonymity' applications are still made in the family courts concerning information which is not sexual or of 'kiss and tell' nature.
In W v M [2011]('the right to die case'),25 an application was made to discontinue and withhold life-sustaining treatment and medical support to a 43-year-old patient suffering from a profound brain-wasting condition. In W the court gave guidance about the reporting of cases heard in the Court of Protection, with particular emphasis on the factors to take into consideration when balancing freedom of expression with the right to privacy. The application was granted.26 Such hearings will always take place in private.27 The proper approach to anonymisation has now been clarified in the JIH case.28
Do the rich and famous have greater access to the right to privacy and the application for superinjunctions by the readiness to fund such proceedings?
On March 9, 2011, Sharp J made an order in MNB [2011],29 prohibiting the identification of the claimant, a lady, with whom former RBS bank boss, Sir Frederick Goodwin had allegedly
(2011) 4 CL 136-139 at  139

had a relationship. In spite of the 'Goodwin' superinjunction being in place, Lord Stoneham (on behalf of Lord Oakeshott) identified Sir Frederick Goodwin in Parliament on May 19, citing Parliamentary privilege. Newsgroup Newspapers (NGN) gave short notice to the court and to Sir Frederick Goodwin that it wished to apply to discharge the MNB injunction on the grounds that it would be in the public interest for there to be publication outside Parliament of the information of which publication was prohibited by the order, and on the ground that that information was already available to the public in the form of reports of proceedings in Parliament.
Lawyers acting for Sir Frederick Goodwin told Tugendhat J that they did not oppose a variation of the injunction which would permit publication of the fact that it was himself who had applied for the injunction on March 9, but Sir Frederick opposed the discharge of the whole order; that is the part should remain in force where the order prohibited identification of the woman with whom he had had the relationship, and details of the relationship, other than the fact that she was a work colleague. The order was granted and varied to that effect.30 Later in May 2011, lawyers acting for the woman failed in an attempt to commence contempt of court proceedings against the Daily Mail. The High Court declined to refer the Associated Newspapers title to the Attorney General, Dominic Grieve QC, over an article it published.31
The law of privacy has been developed by the judges as part of the common law. Will common law ever be replaced by statute? Will there ever be a 'Privacy Bill'? Today, personal information -- much of it inaccurate -- is shared freely on social networking sites such as Facebook or Twitter, or via a blog. Whilst Britain can sometimes seem like a secret state, there are legal powers to access official files and personal information under the Freedom of Information Act 2000 or Data Protection Act 1998. Social networking sites on the other hand have helped expose matters of public interest such as details of the Trafigura affair.32
Material that was once only the domain of the print press and over which some editorial control had been exercised in the past, is now openly accessible via the Google or YouTube search engines.
It can be argued that everyone, no matter how famous, has some right to privacy, particularly within the realms of their own home, and especially when they are hospitalised or undergoing rehabilitative treatment.33 There is, as yet, no apparent legal censorship on websites that demand the stoning of gays, for instance, or the subjugation of women by Islamist fundamentalist.
Is there a public interest defence in the coverage of celebrities and royalty, deemed to be legitimate from the point of view of transparency and democratic control? And can this principle be automatically applied to any public figure anywhere? In the light of the Bavarian Lager case, access to EU documents has been given wider priority in relation to EU citizens post the Lisbon Treaty.34
In Bavarian Lager, Advocate General, Eleanor Sharpston QC opined on the contradictory clash between two EU Regulations concerning the protection of and freedom of access to personal data and information (namely the Community 'Access Regulation' 1049/2001, and the 'Data Protection Regulation' 45/2001). The question remains whether EU law provides individuals with legally enforceable rights in relation to data protection and any information concerning an identifiable person and whether such regulations can be consistently and homogeneously applied in all EU member states to safeguard the protection of individuals' fundamental rights and freedoms, applicable to EU-wide media and social networking sites. The UK courts currently strive to strike a fine balance between the competing rights of the personality and the right to free speech whether a matter is in the public interest or simply only of gossip value.
In May 2011, Lord Neuberger MR published his findings on superinjunctions, anonymity injunctions and open justice.35 Lord Neuberger's 'Committee on Superinjunctions' was set up in April 2010 in order to examine well-publicised issues of concern to Parliament, the judiciary, the media, and the wider public, following the Trafigura and John Terry cases. These concerns centred on the perceived growth in the use and application of superinjunctions and the increasing frequency with which proceedings were being anonymised.
Lord Neuberger's report provides guidance to lawyers and journalists of the steps to be followed before a superinjunction or an anonymised injunction is applied for. The aim of the report is to clarify the court processes and to establish the framework in which such applications may be made and should be decided. The report makes the following recommendations:

  	1     The practice and procedure governing interim injunctions which restrict freedom of speech, including super-injunctions and anonymised injunctions;
  	2     The use of specialist judges to determine applications for super-injunctions
  	3     Super-injunctions and the reporting of Parliamentary proceedings;
  	4     The collection of data about superinjunctions, and anonymised injunctions, and the communication of information concerning the same to Parliament and the public.
The committee's recommendations, if implemented, would be intended to ensure that the proper balance is struck between the interests of claimants and defendants, the latter usually being media organisations. The courts should then ensure that exceptions to the principle of open justice will only be allowed when they are strictly necessary in the interests of justice, and that when allowed they will go no further than is strictly necessary by granting anonymity orders.
The courts have done what they can, using such legal tools to stop the more outrageous invasions of individuals' privacy. However, it is argued that they have so far been unable to articulate such measures as a discrete principle of law. Nevertheless, common law has reached a point where confidence is recognised and will appropriately protect a right of personal privacy by the granting of a (super) injunction. Additionally, the Human Rights Act 1998 requires the courts to give appropriate effect to the right to respect for private and family life set out in article 8 ECHR. Following the 'John Terry' and 'Goodwin' superinjunctions, we can assume that such orders may, in future, only be granted in very limited circumstances and, at least normally, for very short periods of time.

Notes

1     Kaye v Robertson [1991] FSR 62 at 66.

2     Ibid at p 70.

3     As per Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47.

4     As per Sedley LJ in Douglas and Others v Hello! Ltd [2001] QB 967 at 1001C-E (CA).

5     'Twitter account challenges super-injunctions', by Tim Bradshaw, Digital Media Correspondent, Financial Times, May 10 2011. Also reported in: The Times, May 10, 2011; Independent, May 10, 2011; The Guardian, May 10, 2011; 3; Daily Telegraph, May 10, 2011.

6     CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) May 23, 2011.

7     Mosley v United Kingdom (48009/08) European Court of Human Rights, May 10, 2011; (2011) 161 N.L.J. 703; Times, May 11, 2011.

8     See: TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB) May 23, 2011.

9     Ntuli v Donald [2010] EWCA Civ 1276.

10     DFT v TFD [2010] EWHC 2335 (QB) September 27, 2010.

11     Ibid at paras 13 - 23 of the judgment (Sharp J).

12     'Privacy law should be made by MPs, not judges, says David Cameron, by Owen Bowcott, The Guardian, April 21, 2011.

13     CTB v NGN op cit.

14     Ibid at paras 24-26 of judgment (Eady J).

15     'World Exclusive: Ryan Giggs' 8 year affair with brother's wife,' by Keith Gladdis and Carole Aye Maung, The Sun, June 5, 2011.

16     See also: Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB); see also a Facebook case in the Australian court: MKM Capital Property Ltd v Carmela Rita Corbo and Gordon Kinsley Maxwell Poyser (a bankrupt) (Case No SC 608 of 2008).

17     [2010] EWHC 2457 (QB); [2010] All ER (D) 48 (Oct).

18     Source: 'Jeremy Clarkson lifts the gag on his ex-wife: She claims she had an affair with Top Gear star after he remarried,' by Michael Seamark, Daily Mail, October 27, 2011.

19     'Four council workers at centre of fresh Twitter row', by Paul Cahalan, Independent, May 30, 2011; also reported in: Financial Times, May 30, 2011; The Guardian, May 30, 2011; Daily Telegraph, May 30, 2011.

20     'Gagging orders are out of control, says Andrew Marr as he abandons High Court injunction over his extra-marital affair', by Sam Greenhill, Daily Mail, April 26 2011.

21     Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457.

22     See S (A Child) (Identification: Restrictions on Publication), Re [2004] UKHL 47, [2005] 1 AC 593.

23     LNS v Persons Unknown [2010] EWHC 119 (QB) (Case No: HQ10X00271) (sub nom 'John Terry Superinjunction') January 29, 2010 (see also: John Terry (previously referred to as LNS) v Persons Unknown [2010] EWHC 119 (QB) (sub nom 'John Terry Superinjunction').

24     Charlie Brooker, The Guardian, May 16, 2011.

25     W v M (An Adult Patient) [2011] EWHC 1197 (Fam), May 12, 2011.

26     Under the Court of Protection Rules 2007 r 90(1).

27     See Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262.

28     JIH v News Group Newspapers Ltd [2011] EWCA Civ 42.

29     MNB v News Group Newspapers Ltd [2011] EWHC 528 (QB).

30     Sir Frederick Goodwin v News Group Newspapers Ltd [2011] EWHC 1309 (QB), May 23, 2011.

31     See also TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB), May 23, 2011.

32     RJW & SJW v The Guardian newspaper & Person or Persons Unknown (Claim no HQ09).

33     See Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22.

34     Commission v The Bavarian Lager Co Ltd (C-28/08P), ECJ.

35     Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, Lord Neuberger MR, May 20, 2011.