Sex, Lies and Superinjunctions

The current Mexican stand-off between Parliament, the twitter mob and the judiciary descended further into the realm of farce this afternoon when Liberal Democrat MP John Hemming named the footballer, CTB, at the centre of the most high-profile super-injunction as Ryan Giggs. Pretty much anyone who has a Twitter account has been aware of his identity for some time, as has anyone in Scotland since yesterday, or indeed anyone anywhere except England, where the injunction is still in force.  Giggs is not the only person to be named on Twitter, of course. And, to date, there are thought to be over 70 such orders in place. They seem mostly to be in place to allow the wealthy to sidestep public embarrassment, though in at least one case blackmail has been involved.

Such cases illustrate significant problems in negotiating the vertiginous balancing act between the privacy of the individual, enshrined in human rights law, specifically Article 8 of the European Human Rights Convention (the right to respect for private and family life) and the rights enshrined in Articles 10 and 11, which codify the freedoms of expression and assembly.

It’s difficult to work out whether the primary impetus of what has been going on on Twitter these last few weeks has been driven by a prurient need to dig into the lives of the famous, or whether a deeper (and more pernicious) principle is at work: that one’s right to privacy is largely determined by one’s ability to pay for it. What is abundantly clear is that, a quarter of a century after Spycatcher, the British legal system has apparently learned little about stables and horses.  The High Court are now in the ridiculous position of enforcing an injunction that is useless. Whatever the rights and wrongs in the Giggs case, there is a pressing need to protect the privacy and dignity of his wife and family, though one wonders how easy this is, given that she must have been able to hear most of the songs floating around Old Trafford yesterday. The Lord Chief Justice claimed that new technologies risked, “making an ass of the law” and further asserted that “misuse of modern technology” would curtailed at some point. This might seem to be easier said than done, for a variety of reasons.  Twitter doesn’t need to make an ass of the law as it stands; the law seems to be doing a perfectly good job of that by itself.

Things are complicated still further by events in New York, with the arrest of Dominque Strauss-Kahn, former head of the IMF, or the reporting of an extra-marital relationship between Fred Goodwin and a senior colleague. The Goodwin case is interesting, as it points out the difference between the rather more prurient interest in the Giggs case, and the possibly more-relevant-to-the-public-interest behaviour of Goodwin, as it may have affected his performance and functioning in his position at a vital time for himself and the bank. In both these cases, privacy laws helped prevent disclosure of information into the public domain, which may have been in the public interest for the public to know. In France, Strauss-Kahn’s run to the French presidency may have foundered earlier than it now surely must have done, whatever the outcome of his trial. In the UK, Goodwin’s performance, and some of his decisions, may have been scrutinised with a new perspective.

The salient issues, such as they are, appear to be these:

  1. The law is unable to keep up with the pace of technological and social change.
  2. The law is seen to be unfair, ineffective and risible by a huge number of people in this country.  It is seen as a tool of the wealthy to shield themselves from public gaze that might undermine their carefully contrived public personae. Any system of law is only sustainable as long as it enjoys the confidence of those subject to it, and right now it is not clear whether such confidence exists in this apparatus.
  3. It is difficult, though perhaps not impossible, to enforce the kinds of order the UK courts might want in a multi-jurisdictional world. Twitter is based in the US (though it was apparently about to open a UK office. Let’s see how that one pans out now) and would need orders served in US jurisdiction to allow the seizure of personal details requested. This would probably be in conflict with US First Amendment laws, so would very likely fall on deaf ears.
  4. There are, however, examples where the use of such an injunction may be justifiable, and where the public interest is not served by such knowledge being in the public domain.
  5. The law as it stands is unfit for purpose and needs to be looked at. Properly.

We need to find a balance between the individual’s right to a reasonable expectation of privacy and the rights of a free press to report events in the public interest without let or hindrance. This is not the same as being able to print things in which the public might be interested with impunity, but what we, as citizens, need to know. The current circus is not really helping anyone, and the law is doing itself no favours by holding an arresting but futile hand up to the waves that are battering it.

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