Superinjunctions

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Twitter and WikiLeaks have made a mockery of the courts

A showdown between the law and common sense is brewing as a footballer takes legal action over Twitter's injunction breach



  • Imogen-Thomas-Leaving-Cou-007.jpg
    Imogen Thomas leaving court after a hearing relating to the privacy injunction taken out by her former lover, a Premier League footballer whose identity is protected. Photograph: Peter Macdiarmid/Getty Images

    The first modern battle for commonsense press freedoms was fought and won over three decades ago as Margaret Thatcher and massed ranks of lawyers toiled to suppress Spycatcher and its revelations about MI5's lurid history.
    Could the book be published in Australia? Mrs Thatcher lost that case. Could it be published in America, across Europe? It was. Tourists arrived at Heathrow from New York and Frankfurt waving copies. Everyone with an interest in Peter Wright's scabrous stories swapped tales and names over dinner tables. Even Scottish courts offered no respite from eventual humiliation.
    English law had been instructed by a very English prime minister to keep English newspapers – the Observer and the Guardian – mum. We were duly bound hand and foot by thunderous injunctions. But the law as laid down by the high court in the Strand suddenly seemed to stop short at Dover (or, indeed, Gretna Green). The law, in a world beginning to talk about globalisation, was an ass. Worse, judges who ordained that the impossible must be made possible looked asses themselves.
    And now, perhaps, these two ancestral forces – the right to know and the legal necessity to be shut up – are poised on the brink of a final encounter. There have been other skirmishes since Spycatcher, to be sure; but mostly, thanks to a prudent Whitehall reluctance to reach for the Official Secrets Act, they've appeared isolated breaches in a fragile truce. Now technology, moving faster year by year, has made the ultimate confrontation inevitable.
    At first sight, the issue has surfaced in its seediest, least appetising form. Can newspapers, tabloids that sell on kiss and tell, be shut up by injunctions to privacy from footballers or television stars in a bedroom bind? Must gagging injunctions – whether "super" because readers aren't allowed to know they exist, or "anonymity orders" keeping some soccer star's name under wraps – become a fixture in press and celebrity life?
    Last year's furore over WikiLeaks illuminates the higher ground. Here was a deluge of state secrets, downloaded in a trice and published via an internet outfit geared to operate just out of reach of national law. Could an irate Hillary Clinton dam the torrent of embarrassment? No: Julian Assange and his team were based in Sweden, not San Francisco. And the papers engaged in processing the material were British (the Guardian), French, Spanish and German as well as American (the New York Times).
    Put brutally, one national jurisdiction was powerless to ordain what another must do. There was strength, for the press, in widely scattered numbers. America could pursue, threaten web servers, funders and the rest. But stop the leaks? There was – and still is – no way. Politicians might snarl, but the law was impotent. Freedom had made an overwhelmingly practical, digital case. The only thing President Obama could do, his advisers told him, apart from making angry speeches, was nothing.
    Two profound changes, meanwhile, have been becoming evident in the much smaller world of the Strand. One – beginning in 1998 when Labour brought in the Human Rights Act, incorporating the European Convention on Human Rights into British law – has been much growing controversy about how article 8 of the convention (guaranteeing individual privacy) is to be balanced against article 10 (guaranteeing an individual's right to be informed). It's a balance left open for judges to interpret case by case. If they take one stance and impose injunctions – say, against gabby blondes cashing in on their nights of passion with a soap star – then the tabloid press fears a big earner may be destroyed. But the real issues at stake are more complex.
    For the other defining change of the last 12 years has gradually seen the essential big earner for England's small but richly endowed libel bar sliding away. English libel law, offering heavy damages, huge fees and real advantages to a prospective litigant, has slowly become another victim of the digital revolution. Our courts have traditionally welcomed cases from all over the globe, however vestigial publication to a UK audience may have been. In that sense, the internet seemed to offer still plumper pickings. But American administrations, first at a state then a national level, became disgusted by the justice they saw meted out to their citizens by the Strand. They have decided that no English ruling that infringes the right to free speech can be enforced across the Atlantic. Our own politicians, spurred into action, are seeking to reform the gross imbalances of English libel.
    And this decline in libel rewards is fundamentally connected to the rise in privacy speculation since 1998. Max Mosley could have chosen libel, but opted for privacy. Lawyers, naturally, have moved into this fresh, potentially lush area of litigation. Sweeping injunctions – nobody has quite counted them yet – have become the weapon of first resort. Sometimes (as with Trafigura's attempt to gag the Guardian) the case has been too outrageous to endure. More typically, though, the queue of celebrities at the court door has succeeded in buying expensive secrecy for marital misdeeds – even if some, such as Andrew Marr, eventually repented of going to court.
    Has the rush to injunct gone too far, too flagrantly? Politicians, from David Cameron down, think so. Should injunctions be used far more sparingly and only in cases of "strict necessity"? A committee chaired by the Master of the Rolls said so last week. But is technology rendering all such adjustments futile? Here's where the Twitter question is posed starkly, and possibly terminally, for legions of media lawyers.
    Take one Premier League footballer trying to hide his affair with Imogen Thomas, a glamour model. He gets his injunction, but he also gets a tornado of tweets. His name is instantly available on a laptop, tablet or smartphone near you. There may be other wrong names – and aggrieved celebrities protesting – out there as well, but this legal version of privacy is a bad joke.
    And the judges most affected would seem almost to admit as much. Mr Justice Eady, most prominent of those ruling on privacy, draws a distinction between information published in the national press and "that which is only available on a more limited scale", while Mr Justice Tugendhat argues that it doesn't matter if injunctions can't enforce absolute secrecy because they limit the building effect of "humiliation" on those they protect.
    Until Friday afternoon, in sum, there was every sign that the judiciary would avoid a climactic clash over Twitter, which is registered in California and very likely, on current precedent, to be deemed merely a carrier of information, like a phone company, rather than a publisher responsible for every 140-word snippet that flashes across the net.
    But no: here come lawyers for the footballer who had his fling with Ms Thomas wanting a disclosure order against Twitter so that they can find and pursue those who tweeted his name. And here comes the lord chief justice, Lord Judge, warning that "modern technology is totally out of control" (his control, that is). It's that final battle: the law versus common sense.
    The real question is where it will be fought. Twitter, far away with only its reputation to lose, will not rush to provide lists of tweeters. The US government, already miffed over libel, chastened by WikiLeaks and mindful of its own press's First Amendment rights, won't help. And the basic dilemma, by chance, has been brilliantly encapsulated in a recent essay by Professor Geoffrey Stone, the distinguished editor of the Supreme Court Review in the US.
    "Just as the law can no longer effectively deal with obscenity because of social and technological change, so too can it no longer deal with non-newsworthy invasions of privacy," he writes. "For all practical purposes", the defences of privacy "have been gobbled up completely." So, whether in Seattle or the Strand, we had "better learn to live with it".
    One of the dangers of the old privacy ways – in print-on-paper days – "was the risk that people would seriously overvalue the importance of relatively minor instances of private misconduct". Now "the much greater visibility of human foibles in the modern era will probably lead people to learn how to put the mistakes of others in their larger context".
    So this may be a self-adjusting system, says Stone. But first, it appears, England's judges may have a whole lot of adjusting to do

 

Twitter and WikiLeaks have made a mockery of the courts

A showdown between the law and common sense is brewing as a footballer takes legal action over Twitter's injunction breach



  • Imogen-Thomas-Leaving-Cou-007.jpg
    Imogen Thomas leaving court after a hearing relating to the privacy injunction taken out by her former lover, a Premier League footballer whose identity is protected. Photograph: Peter Macdiarmid/Getty Images

    The first modern battle for commonsense press freedoms was fought and won over three decades ago as Margaret Thatcher and massed ranks of lawyers toiled to suppress Spycatcher and its revelations about MI5's lurid history.
    Could the book be published in Australia? Mrs Thatcher lost that case. Could it be published in America, across Europe? It was. Tourists arrived at Heathrow from New York and Frankfurt waving copies. Everyone with an interest in Peter Wright's scabrous stories swapped tales and names over dinner tables. Even Scottish courts offered no respite from eventual humiliation.
    English law had been instructed by a very English prime minister to keep English newspapers – the Observer and the Guardian – mum. We were duly bound hand and foot by thunderous injunctions. But the law as laid down by the high court in the Strand suddenly seemed to stop short at Dover (or, indeed, Gretna Green). The law, in a world beginning to talk about globalisation, was an ass. Worse, judges who ordained that the impossible must be made possible looked asses themselves.
    And now, perhaps, these two ancestral forces – the right to know and the legal necessity to be shut up – are poised on the brink of a final encounter. There have been other skirmishes since Spycatcher, to be sure; but mostly, thanks to a prudent Whitehall reluctance to reach for the Official Secrets Act, they've appeared isolated breaches in a fragile truce. Now technology, moving faster year by year, has made the ultimate confrontation inevitable.
    At first sight, the issue has surfaced in its seediest, least appetising form. Can newspapers, tabloids that sell on kiss and tell, be shut up by injunctions to privacy from footballers or television stars in a bedroom bind? Must gagging injunctions – whether "super" because readers aren't allowed to know they exist, or "anonymity orders" keeping some soccer star's name under wraps – become a fixture in press and celebrity life?
    Last year's furore over WikiLeaks illuminates the higher ground. Here was a deluge of state secrets, downloaded in a trice and published via an internet outfit geared to operate just out of reach of national law. Could an irate Hillary Clinton dam the torrent of embarrassment? No: Julian Assange and his team were based in Sweden, not San Francisco. And the papers engaged in processing the material were British (the Guardian), French, Spanish and German as well as American (the New York Times).
    Put brutally, one national jurisdiction was powerless to ordain what another must do. There was strength, for the press, in widely scattered numbers. America could pursue, threaten web servers, funders and the rest. But stop the leaks? There was – and still is – no way. Politicians might snarl, but the law was impotent. Freedom had made an overwhelmingly practical, digital case. The only thing President Obama could do, his advisers told him, apart from making angry speeches, was nothing.
    Two profound changes, meanwhile, have been becoming evident in the much smaller world of the Strand. One – beginning in 1998 when Labour brought in the Human Rights Act, incorporating the European Convention on Human Rights into British law – has been much growing controversy about how article 8 of the convention (guaranteeing individual privacy) is to be balanced against article 10 (guaranteeing an individual's right to be informed). It's a balance left open for judges to interpret case by case. If they take one stance and impose injunctions – say, against gabby blondes cashing in on their nights of passion with a soap star – then the tabloid press fears a big earner may be destroyed. But the real issues at stake are more complex.
    For the other defining change of the last 12 years has gradually seen the essential big earner for England's small but richly endowed libel bar sliding away. English libel law, offering heavy damages, huge fees and real advantages to a prospective litigant, has slowly become another victim of the digital revolution. Our courts have traditionally welcomed cases from all over the globe, however vestigial publication to a UK audience may have been. In that sense, the internet seemed to offer still plumper pickings. But American administrations, first at a state then a national level, became disgusted by the justice they saw meted out to their citizens by the Strand. They have decided that no English ruling that infringes the right to free speech can be enforced across the Atlantic. Our own politicians, spurred into action, are seeking to reform the gross imbalances of English libel.
    And this decline in libel rewards is fundamentally connected to the rise in privacy speculation since 1998. Max Mosley could have chosen libel, but opted for privacy. Lawyers, naturally, have moved into this fresh, potentially lush area of litigation. Sweeping injunctions – nobody has quite counted them yet – have become the weapon of first resort. Sometimes (as with Trafigura's attempt to gag the Guardian) the case has been too outrageous to endure. More typically, though, the queue of celebrities at the court door has succeeded in buying expensive secrecy for marital misdeeds – even if some, such as Andrew Marr, eventually repented of going to court.
    Has the rush to injunct gone too far, too flagrantly? Politicians, from David Cameron down, think so. Should injunctions be used far more sparingly and only in cases of "strict necessity"? A committee chaired by the Master of the Rolls said so last week. But is technology rendering all such adjustments futile? Here's where the Twitter question is posed starkly, and possibly terminally, for legions of media lawyers.
    Take one Premier League footballer trying to hide his affair with Imogen Thomas, a glamour model. He gets his injunction, but he also gets a tornado of tweets. His name is instantly available on a laptop, tablet or smartphone near you. There may be other wrong names – and aggrieved celebrities protesting – out there as well, but this legal version of privacy is a bad joke.
    And the judges most affected would seem almost to admit as much. Mr Justice Eady, most prominent of those ruling on privacy, draws a distinction between information published in the national press and "that which is only available on a more limited scale", while Mr Justice Tugendhat argues that it doesn't matter if injunctions can't enforce absolute secrecy because they limit the building effect of "humiliation" on those they protect.
    Until Friday afternoon, in sum, there was every sign that the judiciary would avoid a climactic clash over Twitter, which is registered in California and very likely, on current precedent, to be deemed merely a carrier of information, like a phone company, rather than a publisher responsible for every 140-word snippet that flashes across the net.
    But no: here come lawyers for the footballer who had his fling with Ms Thomas wanting a disclosure order against Twitter so that they can find and pursue those who tweeted his name. And here comes the lord chief justice, Lord Judge, warning that "modern technology is totally out of control" (his control, that is). It's that final battle: the law versus common sense.
    The real question is where it will be fought. Twitter, far away with only its reputation to lose, will not rush to provide lists of tweeters. The US government, already miffed over libel, chastened by WikiLeaks and mindful of its own press's First Amendment rights, won't help. And the basic dilemma, by chance, has been brilliantly encapsulated in a recent essay by Professor Geoffrey Stone, the distinguished editor of the Supreme Court Review in the US.
    "Just as the law can no longer effectively deal with obscenity because of social and technological change, so too can it no longer deal with non-newsworthy invasions of privacy," he writes. "For all practical purposes", the defences of privacy "have been gobbled up completely." So, whether in Seattle or the Strand, we had "better learn to live with it".
    One of the dangers of the old privacy ways – in print-on-paper days – "was the risk that people would seriously overvalue the importance of relatively minor instances of private misconduct". Now "the much greater visibility of human foibles in the modern era will probably lead people to learn how to put the mistakes of others in their larger context".
    So this may be a self-adjusting system, says Stone. But first, it appears, England's judges may have a whole lot of adjusting to do

 
Superinjunctions farce would be funny if it wasn't so tragic

Imogen Thomas, Arnold Schwarzenegger, Dominique Strauss-Kahn, Fred Goodwin … who has a 'reasonable expectation of privacy' and who doesn't?



  • Injunction-hearing-Imogen-007.jpg
    Former Big Brother star Imogen Thomas leaves the high court after the latest injuction hearing protecting a married Premier League footballer she had an affair with. Photograph: Ian Nicholson/PA

    It's all almost "bordering on farce" now, says Jeremy Hunt – Ben Travers and Feydeau combined. So, in act one, Mr Justice Eady begins the week by insisting that the famous footballer involved with Ms Imogen Thomas had "a reasonable expectation of privacy". He means that this shrinking soul we'll call Reckless Roy of the Rovers is expected to "bonk a busty Big Brother babe" (in Sunspeak) without anyone saying a word except "Aaah!" Or maybe Roy reckoned spending a quarter of one week's wage on a gagging injunction could be privacy's version of the morning after pill.
    Act two and enter Big Arnie from California, bearing a broken marriage and fatherhood of his housekeeper's baby. Would there have been a reasonable expectation of enforced silence for Sir David Eady to inject there? Cue American horse laughs. Even the New York Times – with the world's biggest newspaper website – decides to name every name.
    Act three: the boss of the IMF on suicide watch as suddenly all manner of distraught ladies now feel able to say out loud that the man who might have been French president touched them up (or worse) … Would Mr Strauss-Kahn have had reasonable expectations too? It's convenient, in polite society, to think sex and upmarket journalism don't mix, but, time and again, they do (as that very high quality journalist, Chris Huhne, may now acknowledge).
    Act four: My Lord Stoneham names superinjuncted Fred in the chamber and the shredded Goodwin's affair is secret no longer. Cue a welter of articles arguing that his affair with another top bank manager shouldn't have been legally hidden because he might have had sex on his mind while distractedly rubber-stamping millions of dodgy mortgages. Isn't Reckless Roy, with his dodgy passing record, in much the same boat?
    Act five is strewn with loose ends. Can the judges most involved, like Eady and Tugendhat, really argue that 100,000 tweets making an ass of the law don't matter? Does the Neuberger report, advocating superinjunctions only when "strictly necessary", know what "strictly" means? And if the same European Convention, with the same article 8 on privacy and 10 on the right to know, applies equally in Britain and France, why is Justice Eady's famed "balance" interpreted so weirdly differently when you reach Calais? Laugh? I almost cried.

    Paywall paradox a matter of culture

    Back to the paywall debate. In the Columbia Journalism Review, the noted media analyst, Douglas Arthur, says something new.
    "One of the ironies of the whole thing is that people have Kindles and Nooks," Arthur writes.
    "All newspaper publishers have been charging for their products on those for a year now, and I think the adoption rates are very good … I've been paying anything from 9 bucks to 20 (for the Wall Street Journal, New York Times and Washington Post) and not thought twice about it. Then, all of a sudden, you're presented with [paying for] internet access … and people are outraged.
    "Because it's Amazon, because people are used to spending things there – I mean, people spend hundreds of dollars downloading books without thinking twice. So it's a cultural issue, and it will take time to turn around."
 
Superinjunctions farce would be funny if it wasn't so tragic

Imogen Thomas, Arnold Schwarzenegger, Dominique Strauss-Kahn, Fred Goodwin … who has a 'reasonable expectation of privacy' and who doesn't?



  • Injunction-hearing-Imogen-007.jpg
    Former Big Brother star Imogen Thomas leaves the high court after the latest injuction hearing protecting a married Premier League footballer she had an affair with. Photograph: Ian Nicholson/PA

    It's all almost "bordering on farce" now, says Jeremy Hunt – Ben Travers and Feydeau combined. So, in act one, Mr Justice Eady begins the week by insisting that the famous footballer involved with Ms Imogen Thomas had "a reasonable expectation of privacy". He means that this shrinking soul we'll call Reckless Roy of the Rovers is expected to "bonk a busty Big Brother babe" (in Sunspeak) without anyone saying a word except "Aaah!" Or maybe Roy reckoned spending a quarter of one week's wage on a gagging injunction could be privacy's version of the morning after pill.
    Act two and enter Big Arnie from California, bearing a broken marriage and fatherhood of his housekeeper's baby. Would there have been a reasonable expectation of enforced silence for Sir David Eady to inject there? Cue American horse laughs. Even the New York Times – with the world's biggest newspaper website – decides to name every name.
    Act three: the boss of the IMF on suicide watch as suddenly all manner of distraught ladies now feel able to say out loud that the man who might have been French president touched them up (or worse) … Would Mr Strauss-Kahn have had reasonable expectations too? It's convenient, in polite society, to think sex and upmarket journalism don't mix, but, time and again, they do (as that very high quality journalist, Chris Huhne, may now acknowledge).
    Act four: My Lord Stoneham names superinjuncted Fred in the chamber and the shredded Goodwin's affair is secret no longer. Cue a welter of articles arguing that his affair with another top bank manager shouldn't have been legally hidden because he might have had sex on his mind while distractedly rubber-stamping millions of dodgy mortgages. Isn't Reckless Roy, with his dodgy passing record, in much the same boat?
    Act five is strewn with loose ends. Can the judges most involved, like Eady and Tugendhat, really argue that 100,000 tweets making an ass of the law don't matter? Does the Neuberger report, advocating superinjunctions only when "strictly necessary", know what "strictly" means? And if the same European Convention, with the same article 8 on privacy and 10 on the right to know, applies equally in Britain and France, why is Justice Eady's famed "balance" interpreted so weirdly differently when you reach Calais? Laugh? I almost cried.

    Paywall paradox a matter of culture

    Back to the paywall debate. In the Columbia Journalism Review, the noted media analyst, Douglas Arthur, says something new.
    "One of the ironies of the whole thing is that people have Kindles and Nooks," Arthur writes.
    "All newspaper publishers have been charging for their products on those for a year now, and I think the adoption rates are very good … I've been paying anything from 9 bucks to 20 (for the Wall Street Journal, New York Times and Washington Post) and not thought twice about it. Then, all of a sudden, you're presented with [paying for] internet access … and people are outraged.
    "Because it's Amazon, because people are used to spending things there – I mean, people spend hundreds of dollars downloading books without thinking twice. So it's a cultural issue, and it will take time to turn around."
 
An injunction is a kind of restrain order issued by mahakama,What exactly is a superinjuction?Je sheria za bongo zinatambua hii kitu? By extension i was also wondering if hyperinjuction also exist in law?
 
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