Breaching so-called “superinjunctions” on Twitter: is this how low we’ve sunk?

by Carl Gardner on May 9, 2011

The BBC has reported that someone on Twitter has purported to “out” a number of celebrities who have supposedly obtained “superinjunctions” to protect their privacy.

It’s unlikely of course that all of them are “superinjunctions” at all, which are injunctions the existence of which cannot be reported. And who knows whether any of what’s been tweeted is true at all. As the BBC reported in the piece I’ve linked to, Jemima Khan says it’s not true in her case. It may all be false.

In any event, I absolutely condemn this latest move in a diffuse but vociferous campaign by some people in the mainstream media and on the web against the right to respect for private life, a right guaranteed by the European Convention on Human Rights, and legislated into our domestic law by Parliament in the Human Rights Act.

It’s not so-called “superinjunctions” that have gone too far. What has gone too far is the nasty, prurient public hounding of people for their sexual behaviour, and the self-serving campaign by some to defend their “right” to hound as some sort of free speech cause célèbre.

Quite apart from the possible contempt of court these tweets represent, they’re also utterly irresponsible. How can the person know they’re true? Haven’t they considered for a moment the partners, children and parents of the people supposedly “outed”? It’s also worth mentioning that in one case, some of the Twitter  remarks and “jokes” now being aimed at one of those “outed” have a really horrible racial component. I won’t quote or link to them for obvious reasons. This is the gutter into which media red-topism, allied to self-righteous anti-privacy militancy, has dragged us.

As I’ve watched this so-called “superinjunction” debate take its course over the last few weeks I’ve been exasperated, frustrated and depressed to see how a word originally coined against the background of really legitimate concerns about the behaviour of a company and its lawyers has been commandeered by journalists to campaign against privacy generally, in cases not involving superinjunctions at all; and used by John Hemming MP in particular of course to further his own personal campaign against the family courts. Depressed and frustrated too by how gullible so many people seem to have been in apparently accepting the conventional media shtick about “a back door privacy law”.

But this latest move makes me ashamed of my fellow citizens and internet users, and angry too. What we have here is the shameless indugence of gossip and rumour-mongering dressed up as championship of free speech. Some of it is really disgusting, and all of it is an insult to those really denied free speech, in Iran, say, or China. Journalists ought to be shouting about their inability to witness important events in Syria, instead of campaigning for voyeurism here.

Two further points about all this have struck me for a while, and may be worth mentioning.

First, it’s interesting that in other contexts, many people have been whipped up into concerns about their own privacy that are completely unjustified. Take DNA, for instance. No one will ever be able to out you as anything, or for doing anything, because your DNA is a on a database – if it ever is. The invasion of privacy involved in keeping your DNA profile is completely theoretical. And there’s a real public interest – the attempt to catch criminals – justifying whatever slight invasion of privacy there is. In contrast, media exposure of people’s relationships, sexuality and so on involves a real invasion of privacy, usually without any public interest justification whatever. Yet this real privacy many people think should merrily be ignored. I find that strange.

Second, a reason sometimes trotted out as a justification for outing people’s private lives is their supposed “hypocrisy”. Well, there may be something in that in a very few cases. But the biggest hypocrisy of all is to argue that other people should have no privacy, if you wish to retain any at all for yourself. I would take the whining of anti-privacy injunction campaigners more seriously if they were prepared to publish on the internet all the most intimate details of their own private lives, hour by hour. It can be done now using blogs and Twitter, and I think anyone who argues against any legal protection of privacy at all should do so. If not, aren’t they the hypocrites?

But back to the serious argument. Of course we need freedom of expression. Freedom to publish cartoons mocking religion. Freedom to take photographs in the street. Freedom to publish novels without being threatened with death. Freedom to put on a play without it being closed by a mob. All these are important, insufficiently protected in this country and insufficiently debated in our trivialised, infantilised media.

But as well as free speech, we need a decent public space in which private lives are respected where there is no good reason to invade them. We need, too, a media that is itself worthy of respect. The current law, voted for by Parliament with its eyes open and being applied correctly by the judges – if anything in a way that leans towards freedom of expression – is the right way to achieve these things. If we’re ever to get them, then this campaign of outrage and outing over “superinjunctions” must stop.

{ 57 comments… read them below or add one }

1 James May 9, 2011 at 12:30

I struggle slightly with this – overall I come out wondering why these ‘super injunctions’ were ever issued in the first place as essentially it prevents the press from finding out about the sex lives of irrelevant individuals in the whole wider spectrum of things.

… [redacted - Carl] …

WHAT – a great fat nothing except a newspaper article – how in god’s name was an injunction ever granted – the cynic in me answers money every time.

The only thing I can see which is good about making these public is the awful hypocrisy in some cases ([redacted - Carl] .. actively tackling subjects and mocking yet clamming shut when the shoe is on the other foot, BBC journo, .. [redacted - Carl] .. columnist – oh how they love to finger point etc etc)

And at the end of the day it reinforces that one should never let a footballer (ex or current) be considered a role model.

———–

I’m sorry, James, but I hope you can understand why I had to redact your comment, which included words that could have helped identify one or more of the people “outed”. I’m against the outing – Carl

2 Christopher Lloyd May 9, 2011 at 12:35

You’re standing on the shore shouting at the sea.
It isn’t a question of whether it is right or wrong to observe injunctions relating to celebrities, it is whether such injunctions are enforceable in an online world.
Do you get “exasperated, frustrated and depressed” about the illegal sharing of music, games and movies?
If so, rather than attempting to resist an unstoppable change in our culture, you might want to adapt your thinking to the world in which we currently live.

3 James May 9, 2011 at 12:38

my apologies for being heavy handed in my descriptions

4 Carl Gardner May 9, 2011 at 12:40

No worries, James.

5 james May 9, 2011 at 12:44

Carl – are there many instances of everyday individuals being successful in taking out a super injunction? or is this actually the preserve of the rich?

6 Jailhouselawyer May 9, 2011 at 12:46

I think the days of a judge issuing a worldwide media gag are numbered. As you know, jurisdiction only extends to the UK and not beyond. Then there is the new media and the old rules cannot be enforced. As you can see, from this law report Jemima Khan does have an injunction, however, it does not relate, as she quite rightly states, to any connection between herself and [redacted - Carl. See below]. http://www.bailii.org/ew/cases/EWHC/QB/2011/674.html

Did you ever hear of a poor person rushing into court to get an injunction? No. It’s a rich person’s remedy. The same as libel, you have to be rich and who is being sued has to be rich.

There is a genuine freedom of speech argument. Celebrities are public figures. They present an image how they wish to be viewed. If they then do not live up to that image and get found out, I don’t think it is the role of a court to try to hide this embarrassment. I recall Jonathan Aitken attempting to hide his guilt behind his family. There may well be valid privacy arguments to protect children. There again, some of these celebrities appear to be using this to protect their own image.

——–

Jemima Khan has spoken up to say what’s been alleged about her having a superinjunction is false. Otherwise, please don’t name those “outed” in comments. I’m against this sort of outing.

7 Carl Gardner May 9, 2011 at 12:49

James,

First: are you really talking about “superinjunctions”? Or just a normal privacy injunction? That’s one of the confusions that bedevils this debate.

Second, I’ve no idea who has taken out a privacy injunction (if that’s what we’re talking about) and who hasn’t. What makes you think only rich people ever have? Okay, maybe it’s a reasonable assumption to think this is something celebrities do. Some celebrities are rich, of course. Others less rich than we might think. But if it is a reasonable assumption, I think that’s because it’s rich celebrities, not more obscure poor people, who the tabloids are primarily trying to hound.

And if injunctions are the preserve of the rich, that seems to me an argument for making privacy law more accessible and cheaper for people to enforce. Not harder.

8 James May 9, 2011 at 13:03

1. I have no idea – I assumed (probably quite incorrectly) – that there was a difference.
2. I do not think only the rich have – that’s why I’m asking the question. I would however assume that it is the preserve of the richer classes. One thing, this isn’t a tabloid issue – everyone from the red tops to the broads are perusing this and stretching how far they can push this – the twitter accounts are (assuming) ordinary folk.

Personally I couldn’t give a toss how you like it in the bedroom, and whether you are a prime time celeb or a cabbie doesn’t influence this.
Privacy law should as you say be easier to access and enforce (again an assumption it isn’t) however I also think it makes a mockery of the law itself that these have been issued to prevent a sordid little scandal being released – concerning nobodies doing essentially nothing – except hiding their shame….that’s the scandal, the fact that a legal team worked on it and a judge approved it.

9 Carl Gardner May 9, 2011 at 13:08

James,

I think the argument that injunctions have gone too far because they’re “gagging trivia” is a strange one. Should they be reserved for gagging serious stories? There’s something wrong with the argument I think.

10 Clare May 9, 2011 at 13:10

Can you explain to me how this could be contempt of court? Would there be juries involved in any of these cases?

11 TRISHA May 9, 2011 at 13:13

Am I only one in the country who doesn’t care who is doing what to who, as long as it isn’t illegal or against what said person publically moralises?

12 Carl Gardner May 9, 2011 at 13:18

Clare:

Breaching a court order is contempt of court. If this tweeter really knows about injunctions and is breaching them, that could be contempt.

13 Mark Croucher May 9, 2011 at 13:19

An interesting argument. I can’t help but feel that if you choose to live your life in the public eye, you don’t really have a leg to stand on when bits of it you don’t want to come out do. Those who have obtained ‘super-injunctions’ always had a choice: to conduct their lives with (for want of a better word) a ‘morality’ which is commensurate with their public image, or to suffer the consequences. Footballers who make a big song and dance about their wholesome family image – indeed who profit through sponsorship deals etc precisely because of it – are not really in a position to complain if those deals disappear not because of the media in daring to find out, but because they did not live up to the image they have created for themselves.

I don’t see an element of hypocrisy in this. If you’re in the public eye and you don’t want to read about your private life in the papers, then don’t lead the sort of private life that makes the News of the Screws salivate. Simples.

As for your points regarding DNA, it’s all very well, but where do you draw the line? After all, in the interests of fighting crime, we could implant an RFID chip in every person in the UK, so we constantly know everybodies whereabouts. Need to solve a crime? No problem, just look up who was there at the appropriate time. Reductio ad absurdum perhaps, but technically feasible in the very near future if not now. The fact that we can do something is not an argument in favour. I have done nothing wrong, so why does the government need my DNA? In case I do something wrong at some unspecified point in the future? I hardly think that can be the correct answer for a free society.

14 Carl Gardner May 9, 2011 at 13:20

John (Jailhouselawyer),

You’re in the public eye now, John. Do you think it should be open season on you?

15 Jailhouselawyer May 9, 2011 at 13:21

Carl: Your censorship is getting childishly pathetic. Jemima Khan, BBC and Telegraph have all mentioned the name I mentioned, and in the context I did.

Grow up!

16 Carl Gardner May 9, 2011 at 13:25

John (Jailhouselawyer),

They may have. I haven’t.

Mind your own blog, and comment elsewhere if you prefer.

17 James May 9, 2011 at 13:25

But where we have a free press isnt it up to a judge to decide on the ‘triviality’ of such things (or in circumstances where an issue may affect an ongoing legal issue or tribunal).

Paying for sex is illegal yes – so why do we have a legal system that prevents reporting of this?

18 Andrew May 9, 2011 at 13:25

I find it strange that someone would want to protect people who seem well able to legally protect thmselves. I think the online reaction to so-called superinjunctions is highly predictable as “the little man” takes joyful pride in hauling down those amongst us who feel they can use the law as a shield for their more shady decisions.

Of course, you also neglect to mention that those doing things they don’t want others to find out about should perhaps not do them in the first place. It works for a lot of us.

19 DCLondon May 9, 2011 at 13:31

I wholeheartedly agree with Mr Croucher. Anyone in the public eye these days has an opportunity to make a great deal of money through their image, whether it’s via sponsorship deals, commercial opportunities, or selling their wedding/family/weekend barbecue photos to the highest bidder. The single reason why super-injunctions are in place is the preservation of this image, and this is precisely why I feel it’s a practice that needs eradicating.

Hiding behind the protection of one’s family is absurd – the footballer that had the alleged affair clearly wasn’t “protecting” his family during the however-many-month affair he embarked on – it seems he didn’t give a monkeys.

20 Football loving Lawyer May 9, 2011 at 13:39

Interesting article Carl but I do not agree with your opinion.

Saying that challenging a superinjunctions is “an insult to those really denied free speech, in Iran, say, or China” is nonsensical.

By that logic, if I challenge a statement from a BNP candidate, I’m insulting Nelson Mandela.

I agree, however, that there are far greater gags on free speech in the world than those which are in the news today. – the Saudi Arabian legal system being one.

21 Jailhouselawyer May 9, 2011 at 13:41

First we had redacted MPs expenses. Then redacted court judgment to hide torture allegations. Now we have you redacting fair comment because it does not fit in with your unreasonable thinking process. As I said, already, you are very childish and this is confirmed by your irrelevant response about open season. As it happens, it has been declared before and I can take it.

Given that the woman herself referred to the man and that you are writing about her yourself, your censorship was misplaced. Be adult enough to admit you got it wrong. And stop spitting your dummy out.

22 Neil Macehiter May 9, 2011 at 13:51

It seems to me that we are losing site of the privacy forest for the injunction/superinjunction/hyperinjunction trees. Vested interests in the media coupled with unhelpful interventions from politicians of various parties and seniority (from the PM down), are diverting the discussion away from one that is focused on the critical balance between the the right to respect for private and family life and freedom of expression to a one comprising a hotchpotch of incendiary memes including the judiciary overstepping the mark, the rich/famous people using their wealth and influence to stifle the press, Europe overriding parliamentary supremacy etc etc.

I disagree wholeheartedly with those that claim that those that live in the public eye have no right to a private life, not least because the existence of a public life implies that there is a private life. Plus the HRA makes it clear that it’s a right to private AND FAMILY life. Do proponents of this argument also believe that their spouses, partners, children, parents also have no legs to stand on? Do those with a public Facebook profile lose the right to a private life – or is there some notion of a degree of public life?

It is true to say that superinjunctions have been abused, as in the case of Trafigura, but that wasn’t about an individual. Some of the injuctions at the heart of this debate may be abusing the system but who am I to say or judge because, by definition, we don’t know. The issues may well appear trivial but, if so, where’s the public interest – as opposed to idle curiosity – that would mean freedom of expression trumps the right to a private life in such trivial issues.

I am certainly not one to stifle debate but I think we need one that is balanced and well informed because otherwise there is a serious risk that the hyperbole and misinformation leads to a discrediting of hard fought rights on both sides of the argument.

23 Garrulous Law May 9, 2011 at 15:00

“Paying for sex is illegal yes”

No.

24 Janvier May 9, 2011 at 15:09

Legal question.

The person who has supposedly “outed” these celebrities on Twitter has clearly made them up (or at least in the Jemima Khan case). If, in the process of making up super-injunctions you happen to breach an actual super-injunction, how can you be held in contempt? You can’t be held for breaching an injunction you don’t know exists, surely. Or is intent not a factor?

If this is what it appears to be, which is in my view likely some bored prankster who is making educated guesses at current super-injunctions, then the only crime one is guilty of is idle gossip.

25 James Medhurst May 9, 2011 at 16:22

Carl,

You say the feelings of wives and mistresses are paramount so what should happen if a wife or a mistress feels it may benefit her to talk about an affair publicly? Should she be prevented from doing so?

As things stand, it is possible to be in comtempt of court by talking to one’s therapist, if the therapist happens to write the details down.

26 Neil Macehiter May 9, 2011 at 20:01

“As things stand, it is possible to be in comtempt of court by talking to one’s therapist, if the therapist happens to write the details down.”

How so? If one takes out an injunction preventing publication how can notes taken during a confidential – and thus non-publishable – discussion with a therapist/Relate/family member/friend result in contempt?

The argument regarding spouses/partners/brief encounters is one promoted by the press as a justification for their blanket opposition to injunctions. The privacy right extends to family life so a spouse/partner/family member could take an injunction to prevent the other party from publishing information if the public interest in publication is outweighed by the privacy right so a) takes an injunction on b), b) want to speak in public through publication which a) believes invades their right to privacy so a) takes an injunction out preventing b). It’s a balancing act and, in reality, in light of the lack of public interest in the majority of kiss-and-tell stories the balance between a) and b) is likely to be in favour of both.

27 James Medhurst May 9, 2011 at 20:48

In libel and privacy law, to “publish” means to cause to be put in writing with the intention of being read by at least one person. I admit that the therapist example is silly but there is absolutely no doubt that, for example, an e-mail to a friend would be actionable.

The problem with social media is that they can be treated as being equivalent to publishing a newspaper, with all of the responsibility that entails, or as akin to chatting with mates over a few drinks in the pub. You can make jokes about blowing up airports in the pub but not in a newspaper. Somebody urgently needs to decide which is the case and it needs to be consistent, across all areas of the law.

I also think that privacy law needs to be thought about not as a new and exciting law which is being used quite sparingly, but as an area which has the potential to expand like libel and to become a major industry. If I can think of ways to abuse it then so can others and it is only a matter of time before they catch up with practice in libel. It is surely better to anticipate problems than wait for them to arise.

Injunctions are necessary but they should be time-limited in scope and should normally be applied to named newspapers rather than the world at large. They should not be granted when damages are an adequate remedy. It does make a difference when the things being protected are trivial. I should not be able to obtain an injuction to prevent a newspaper revealing my embarassing music collection.

28 Anonymous May 9, 2011 at 21:23

“In libel and privacy law, to “publish” means to cause to be put in writing with the intention of being read by at least one person. I admit that the therapist example is silly but there is absolutely no doubt that, for example, an e-mail to a friend would be actionable.”

Thanks for the clarification. If I had a confidential discussion with an individual and they went ahead and divulged it via email, Facebook etc etc then I would be pretty disgruntled.

“The problem with social media is that they can be treated as being equivalent to publishing a newspaper, with all of the responsibility that entails, or as akin to chatting with mates over a few drinks in the pub. ”

I agree. However, the medium by which is confidential/private information (or where this an expectation that it is confidential/private) is divulged is secondary from my (non-legally trained) perspective. I would feel it an invasion of my privacy if the information was divulged over a pint or a keyboard.

Also, doesn’t publish mean to make public. I guess one could argue that social media isn’t public by virtue of the need to subscribe etc etc but I don’t see how that would be different from invading someones privacy by writing an article in a newspaper with a distribution in the 1000s rather than 1,000,000s

“You can make jokes about blowing up airports in the pub but not in a newspaper. ”

Try making a joke about blowing up an airport within earshot of a US border security guard. Again it seems to me it is less about the medium and the nature, intent and context of the message. The Paul Chambers case is a difficult one and appears to me to depend on an interpretation of the nature, intent and context (and the definition of a public communications network). If he had made the joke in the pub within earshot of the Nottingham airport security person rather than the latter finding a tweet would it still have been deemed a threat and resulted in any action?

29 Neil Macehiter May 9, 2011 at 21:35

“It does make a difference when the things being protected are trivial. I should not be able to obtain an injuction to prevent a newspaper revealing my embarassing music collection.”

What is trivial? Surely, it’s down to the individual to define what they deem private and then it comes down to the balance between what is private and what is in the public interest. What if you were an MP and your iPod playlist comprised obviously racist/homophobic artists associated with similarly inclined movements? It wouldn’t be the fact that it was a record collection that meant it could be published – it would be that there is a public interest in that information being divulged. The MP presumably would be entitled to attempt to take out an injunction preventing publication and it would be down to the judiciary to undertake the balancing act.

30 James Medhurst May 9, 2011 at 22:03

“If I had a confidential discussion with an individual and they went ahead and divulged it via email, Facebook etc etc then I would be pretty disgruntled.”

So would I. And if I was having an affair and my mistress told my wife, I would be pretty disgruntled too. However if, after my wife had found out about the affair, my mistress e-mailed her friends, I cannot see how I could possibly be upset about it. The whole point of keeping it private has gone and it would be in the public domain. I could not claim that my case is remotely analogous to that of Jon Venables, who was in real danger of being murdered by vigilantes.

31 Neil Macehiter May 9, 2011 at 22:13

“However if, after my wife had found out about the affair, my mistress e-mailed her friends, I cannot see how I could possibly be upset about it. The whole point of keeping it private has gone and it would be in the public domain. ”

How about if you were in a “public position” – say you were a councillor in a marginal seat last week – and one of your wife’s friends decided to leak it to the press and you became aware of it? Would you be upset then and would you try to prevent it or would you be happy to accept that it’s in the public domain? I am not saying that an injunction should be granted in that case: it’s more about the motivation for seeking one.

“I could not claim that my case is remotely analogous to that of Jon Venables, who was in real danger of being murdered by vigilantes.”

Of course you couldn’t but there’s plenty of grey between the black and white of those two examples.

32 Pancho May 9, 2011 at 23:31

I think that protecting the privacy of people is good, but not when they have or are committing a crime. The actor who paid for sex with a prostitute should be named. As should the chef who sexually harassed a female employee. The Human Rights act should not be used as a defence mechanism if in your actions you have violated someone else’s rights or broken the law. I am sure that most of us already know who these people are, so in the end the injunctions only worked in making a lot of people more interested than they may well have been in no injunction was filed. I fully expect 1 or 2 of these people to confess to what they have done in a “Tell All” autobiography and the injunction is just there to protect future profits.

33 Douglas Aitken May 9, 2011 at 23:41

Sorry fusty old legal rubbish. Much of the online community are pursuing the free exchange of ideas and information. Some of this will invariably involve the private lives of the rich. This is an increasing and unstoppable movement towards freedom of information and is far nimbler and more flexible than the torturously slow workings of the legal establishment. The law will eventually have to recognise the new reality as state information control becomes ever harder. Enjoy!

34 Neil Macehiter May 10, 2011 at 09:27

“Some of this will invariably involve the private lives of the rich.”

How about the not so rich. Would you be happy if it was information about your private life that was being freely exchanged on Facebook and Twitter?

“This is an increasing and unstoppable movement towards freedom of information ”

Freedom of information doesn’t imply that all information needs to be free. It is certainly more flexible and nimble.

“state information control becomes ever harder”

What has this to do with the ecchange of information about the private lives of the rich? Freedom of information concerns information that should, by definition, be in the public domain and where the public interest wins out. However, I don’t see the link between that and the information that is at the heart of the majoirty of the injunctions/superinjunctions.

I agree with what is implied by your comments: the law needs to evolve in response to the fact that barriers to large-scale/global exhange of information are rapidly coming down. Private information is still private information: the new realities make it much more difficult to retain.

35 Stephen May 10, 2011 at 10:55

I disagree that the State holding its ctizens DNA is innocuous or less of an intrusion than press reporting of private life. Detection of crime (actual or not yet committed) may provide justification now but what of the future? Might the State start to use DNA info it holds for other unknown, more sinister, purposes? I fear that the scenarios that prompt this question may not be fanciful and may be realised as we move ever close to a distopian society.

36 Douglas Aitken May 10, 2011 at 13:35

My info is all freely available for anyone to see on facebook. I have nothing to hide.

37 Neil Macehiter May 10, 2011 at 13:51

“My info is all freely available for anyone to see on facebook. I have nothing to hide.”

I admire your openness. I for one have information that I deem to be private. For example I wouldn’t publish my annual income on my Facebook profile; how I voted at the last election; details of medical complaints; criminal convictions – spent or otherwise; messages I receive via Facebook; …

38 Douglas Aitken May 10, 2011 at 13:54

If the public are interested than it is in the public interest. The British state through the courts (and the EU) will fail in their attempt to protect the lives of the rich to scrutiny. Such laws are simply increasingly unenforceable.

39 Douglas Aitken May 10, 2011 at 14:02

No-one in their right mind would leave bank details etc.. on Facebook. But my medical complaint (bad back) and interactions with friends and family on my wall are there for everyone to see. I have no convictions – I don’t vote – annual income about 15 grand. If people have some terrible secret to hide, then they shouldn’t be in the public eye, simple as that, and they have nothing to complain about if people find out.
How much do you earn?

40 Neil Macehiter May 10, 2011 at 14:15

“If the public are interested than it is in the public interest.”

I disagree. Public interest includes:
Detecting or exposing crime or a serious misdemeanor.
Protecting public health and safety.
Preventing the public from being misled by some statement or action of an individual or organisation.
Exposing misuse of public funds or other forms of corruption by public bodies.
Revealing potential conflicts of interest by those in positions of power and influence.
Exposing corporate greed.
Exposing hypocritical behaviour by those holding high office.

The public is interested in all sorts of things: which footballer is dating which reality TV contestant; whether a celebrity is seeking medical treatment for an embarrasing illness; the whereabouts of the Bulger killers etc etc but they don’t meet the criteria of being in the public interest.

41 Neil Macehiter May 10, 2011 at 14:26

“No-one in their right mind would leave bank details etc.. on Facebook. But my medical complaint (bad back) and interactions with friends and family on my wall are there for everyone to see. I have no convictions – I don’t vote – annual income about 15 grand. ”

Again, I admire your openness but what is private is down to the individual to determine and there are clearly somethings you do want to hide. If there is a public interest – as opposed to interest from the public – in exposing that information and that outweighs that individuals determination then it should be published. So, for example, the fact that an MP holds very different views on a particular issues from their public statements may be felt by the MP to be private but there is a public interest in knowing that is not the case. Similarly, if a public sector organisation believes that dodgy contracts should be private but there is a clear public interest in that information being made public then it should be etc etc. It’s a balance between what the individual deems to be private and what is in the general public interest.

“If people have some terrible secret to hide, then they shouldn’t be in the public eye, simple as that, and they have nothing to complain about if people find out.”

So, would it be acceptable for the details of an embarrasing illness suffered by a local councillor that has no impact on their role as a councillor be published because they are ‘in the public eye’. It seems to me by your argument that public servants as well as celebrities should give up their right to privacy by virtue of their public service.

“How much do you earn”

I believe that information is private and there is no public interest in you or anyone else knowing it.

42 Douglas Aitken May 10, 2011 at 14:31

Unfortunately then we will have to agree to disagree. It is simply shameful that our courts are protecting rich people who have done things that are simply wrong. The public’s thirst for knowledge, whilst seemingly trivial sometimes to some, increasingly can’t be legislated against in the internet age. What is the point of an unenforceable law?

43 Neil Macehiter May 10, 2011 at 14:50

“It is simply shameful that our courts are protecting rich people who have done things that are simply wrong. ”

It’s the law, voted for by parliament, that is ‘protecting rich people’. is the fact that a professional footballer is having an affair with a reality TV contestant ‘simply wrong’? is the protection of the safety of the Bulger killers (who have according to the law made recompense) ‘simply wrong’? or the protection of the privacy of the children involved in a celebrity divorce case ‘simply wrong’?

The Human Rights Act, Articles 8 and 10, does not legislate against the public’s thirst for knowledge. They endeavour to balance the conflicting needs of the right to a private life and the right of freedom of expression.

44 Douglas Aitken May 10, 2011 at 15:25

I’m sure that your legalistic definitions of private life are all sound but they are incresingly at odds with reality online. I happened to come across the five (one of the six was certainly false) superinjunctions on twitter yesterday and on all of them, the courts are preventing knowledge of immoral although not illegal (apart from the prostitute super-injunctions) acts. The courts are clearly protecting those who engage in these immorality (most people would find affairs, prostitutes, harrassing female employees as clearly wrong).

45 Douglas Aitken May 10, 2011 at 15:59

So much for freedom of speech. Censored for I can’t say what in case I get censored again What ridiculous tosh. I’m off back to the free flow of information and it’ll be interesting to see how long it takes the legal world to wake up. Enjoy!

46 Carl Gardner May 10, 2011 at 16:05

Not censored, Douglas.

Your comment was automatically held for moderation, and I’ve approved it in full.

It’s true that I’ve automatically set things up so that people can’t simply post the names of those “outed” in comments here. I think that’s reasonable.

As it happens though I’m not sure your comment was actually held because of anything I stipulated. Could Wordpress have done it automatically because of one of the words you used?

47 ukliberty May 10, 2011 at 16:31

Douglas,

I happened to come across the five (one of the six was certainly false) superinjunctions on twitter yesterday and on all of them, the courts are preventing knowledge of immoral although not illegal (apart from the prostitute super-injunctions) acts. The courts are clearly protecting those who engage in these immorality (most people would find affairs, prostitutes, harrassing female employees as clearly wrong).

Aside from the harassment of female employees, so what? Why do you care about what people get up to in their bedrooms (or dungeons)? Why does your nosiness outweigh my right to privacy? Some people do not want the public to know what they get up to in private. Why shouldn’t they be allowed privacy?

48 Neil Macehiter May 10, 2011 at 16:34

“I happened to come across the five (one of the six was certainly false) superinjunctions on twitter yesterday and on all of them, the courts are preventing knowledge of immoral although not illegal (apart from the prostitute super-injunctions) acts. The courts are clearly protecting those who engage in these immorality (most people would find affairs, prostitutes, harrassing female employees as clearly wrong).”

You of course mean alleged superinjunctions: by definition you can’t be sure they are true. How many of the ‘immoral acts’ are proven? How would you feel if someone on Facebook updated their status to claim that you were having an affair. Extend that argument and assume you were in ‘public office’ – say for example a practicing magistrate – and that information was picked up by a journalist and published in your local newspaper. Would you want protection from the courts or would you accept it was the free flow of information?

As you point the majority of these aren’t illegal. There are plenty of other things that some people view as immoral or wrong but are pefectly acceptable in public and certainly private life but are not illegal. Go back a few decades and homosexuality was seen as by many as immoral and wrong and celebrities and public officials were ‘outed’ by the press. Were the press right to do so and should the law have afforded them no protection?

49 Carl Gardner May 10, 2011 at 16:55

I’ll be offline for a while soon. If commenters don’t want to be held for moderation, I advise avoiding the word “prostitute”. I think that could be what’s holding you up.

50 Donhonki May 10, 2011 at 18:56

I was given a five year rap and poetry ban in 2009 from crown court. I am banned from naming four names in my poetry from 2009-2014. Media are also banned from reporting on any of this story.
See the official crown court papers I have up at myspace.com/
Also check out…
Twitter.com/donhonki
Facebook Ian donhonki dunne

51 Donhonk May 10, 2011 at 19:11

Banned from writing poetry & recording any music with direct or in-direct reference to four people in my family.
I am banned from writing about my childhood and even drawing “offensive” pictures.

“First ever crown court banned u.k rap poet” (2009-2014)

See the official crown court papers up @ myspace.com/donhonki

52 Lee May 10, 2011 at 19:56

How can anyone face legal sanctions for writing a few words on Twitter or a blog since they cannot consciously be in breech of a superinjunction that they are not allowed to know about?

53 ObiterJ May 10, 2011 at 21:20

Since Trafigura – (a true “superinjunction” outed in Parliament by Mr Hemming) – there have been interesting developments in this area but, as far as I can see, very few of the cases involve injunctions where the fact of the injunction may not be published. In the usual injunction case the judges appear to be at pains to balance Art 12 (expression) with Art 8 (privacy).

Unless Parliament intervenes – and I don’t yet see any draft bill – then the judges will be free to develop this area of law since Parliament itself allowed them to do so under the HRA 98 and, to be frank, the possibility of a law of privacy developing was envisaged when the HRA was enacted.

I think the Moseley decision at the E Ct HR is right – Art 8 does not require States to have a prior notification rule. However, it may have some merit – a point I will take up on the other post on the Moseley case.

54 ObiterJ May 11, 2011 at 08:45

In my post immediately before this, I should have said Art 10 and not 12.

55 John May 11, 2011 at 12:37

Yes, I was going to write something about the tensions between Arts 10 and 12, but my wife said I couldn’t.

56 andrew pack May 16, 2011 at 16:36

An interesting piece – I tend to be with Carl on this one. I think it is important to keep an eye on the motivation behind the Press in their clamour about ‘judge-made law’ – it is a lot easier to get public support for ‘stop Judges protecting rich people from doing bad things’ than it is for ‘we want to run stories that have limited Public Interest, but in which the public are very interested and which will sell papers’.

I think it would have been in the Public Interest, had the press known at the time, to run a story about a Tory Prime Minister “John”, say, who was having an affair with a cabinet colleague whilst running a campaign about traditional family values and back to basics morality. I think the public might well be interested to know if a rich footballer is cheating on his wife, but I can’t see how it is in the Public Interest to have that story run (unless there is evidence of such footballer lecturing others on family values or using his happy family life for commercial gain and thus being hypocritical).

There’s no easy good guy in the superinjunction situation – the Judges are creating law which protects rotten eggs, the rich are running off to court to spend money to protect themselves, using an option that wouldn’t be available to ordinary people (say people arrested early on in a murder enquiry and subsequently released and shown to not be responsible), lawyers earning a packet by acting on behalf of rotten eggs, and tabloids complaining that they can’t run their juicy stories.

There’s no obvious person to root for – but just as the proper test of whether you believe in freedom of speech is whether you support people’s right to say what is reprehensible to you, the test for whether you believe in a right to privacy is whether you support people being able to keep shabby and sordid things secret provided there is no genuine Public Interest in doing so.

57 txwikinger May 16, 2011 at 18:52

I believe UK privacy law seems not able to adapt to new technologies and social behaviors, since it seems to make a mockery of the legal process.

Injunctions are only enforceable in the jurisdiction in which they are brought. Injunctions (and in particular superinjunctions) in the realm of freedom of speech and privacy laws are in particularly a UK phenomena. How can they have any effect when the whole world around it does not follow those injunctions?

Anybody could sent me any information anonymously and I could publish it without even knowing where it came from, because I am not under the UK jurisdiction. However, anybody inside the UK jurisdiction could access it since the Internet does not stop at the UK border.

This is like the Federal Election Law in Canada, which prohibits national publications of election results until all polls in the whole nation are closed. However, local broadcasters are allowed to publish the information locally before such a time. This let to lots of people to e-mail the results to people outside Canada (which is allowed, since it is not broadcasting) and those people outside Canada posted them to twitter (which is legal since they do not fall under Canadian jurisdiction).

Laws that are not enforceable are bad laws.

I also think there is an issue about the myth of privacy in general. Privacy and privacy laws are a very recent social development. It seems to have risen from a more anonymous society. In recent decades neighbours in cities often do not know their neighbours anymore. Before that, when people lived in more observable groups of people (i.e. villages, small towns) people gossiped about each other all the time. Still today in smaller social groups such kind of gossip is going on (Clubs, Churches etc.).

In particular, when taking the European Convention of Human Rights, it is a convention that is supposed to protect the individual from the all powerful state, not from other private individuals. Hence, it needs to be distinguished from libel laws.

The reason for Art. 8 is to prevent the state to persecute individual because of political motives. The McCarthy persecutions in the USA in the 60s would have fallen under Art. 8 if something similar would have been occurred in Europe. However, this is different to the injunctions in UK courts.

If someone publishes something false, there are libel laws available. The compensation for damages should be enough deterrence, injunctions are not needed. And if the published information is not false, what is the problem?

When a public figure acts in foolish way, and it is the truth, what is the issue? Because children could be hurt? Why then don’t we have permanent injunctions against racism? Lot’s of children are hurt by racism that is far too common in UK’s newspapers. And the PCC is totally useless in this regard (I may publish my encounter with them one of these days on my blog).

The issue is not publication of true stories. The issue is that some people think they can buy more rights than others, which in turn stops society to watch each others morality. People can have different opinions about morality, however, then it is also no issue of privacy, but rather what effect a publication of such “edge” issues has.

I rather suggest that i.e. employers are not allowed to consider information from the Internet when making employment decisions than enabling censorship by the state (either in form of government or judges – judges are one of the three powers of government!)

In the same way that the Industrial Revolution has changed society in a way that privacy has become something people believed obtainable (mostly due to the anonymisation of society), the Information Revolution has taken some of this away again. Changes in society due to advancement of civilisation are inevitable. Laws need to keep up with it! Fighting against it, is a waste of time. It is far more important to think about how to equalise the balance of power between individuals where it makes sense. And for this equal access to the legal system is absolutely necessary. This is a far more important deficit than some public figures feeling embarrassed about their own acts!

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