Super injunctions, privacy and Twitter

By Legal Eagle

[Cross posted at Fortnightly Review. Please visit to read Vicki Huang’s piece on copyright, competition and trademarks highlights from the Fordham IP conference in New York City at the end of April and Rebecca Mouy’s report of a seminar on Human Rights and Intellectual Property by Graeme Austin and Larry Helfer.]

The law is generally unsuccessful when its ability to prevent the flow of information is pushed to the limit. As I’ve described in an earlier post, the Spycatcher case is a primary example: the more the British government attempted to prevent Peter Wright from publishing his book on MI5, the more publicity they gave it. And the English government met very little sympathy from courts in other jurisdictions when it attempted to suppress Spycatcher in Australia, New Zealand and Hong Kong, even though those jurisdictions were former colonial outposts.

The latest iteration of this particular battle has occurred on Twitter in the UK. A user named @InjunctionSuper set up an account which made a number of allegations against a variety of celebrities. Among other allegations, a prominent footballer (later outed as Manchester United’s Ryan Giggs) was accused of having an affair with a reality television star (an injunction preventing publication of allegations had been awarded by Eady J in CTB v News Group Ltd [2011] EWHC 1232 in April); an actor was said to have used the services of a prostitute named Helen Wood; and it was alleged that Jeremy Clarkson had an injunction preventing the publication or mention of intimate photographs of himself with Jemima Khan.

All these people were said to have had “super injunctions” which prevent not only publication of the details of the allegations and the identity of those concerned, but even prevent people and media outlets from reporting of the existence of the injunction itself. Importantly, to breach the injunction or to knowingly to assist in or permit a breach of the injunction constitutes contempt of court. People who breach such an injunction may be imprisoned, fined or have their assets seized. In the event, some of the celebrities in question did not have “super injunctions”, but merely anonymity injunctions (which prevent disclosure of confidential information and the identity of one or both of the parties, but do not prevent discussion of their existence).

Ironically, the story broke when Khan responded to the tweet, vehemently denying it:

Only minutes after the claims were published on Sunday, 37-year-old Mrs Khan denied having an affair with Clarkson, saying the allegation was ‘untrue and upsetting’.

‘OMG – Rumour that I have a super injunction preventing publication of “intimate” photos of me and Jeremy Clarkson. NOT TRUE!,’ she tweeted.

A minute later she added: ‘I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!’

She added: ‘The proof that I haven’t got a super injunction is that the papers have printed my name (and no one else’s – for fear of being sued).’

The socialite received supportive text messages from both Clarkson and his wife Francie after the allegations emerged.

Clarkson used humour to dismiss the claims. In a text to Mrs Khan he said: ‘It’s odd. I’m sure I’d remember if any photos of us existed.’

Khan is correct: the media showed no compunction in mentioning her name, whereas it has been cautious about mentioning other people.

Of course, “super injunctions” and anonymised injunctions are very expensive to obtain, and as one lawyer commented to The Independent: “It’s the beginning of the end. Even a rather thick footballer is going to think twice before handing £100,000 to a greedy lawyer if the greedy lawyer can’t guarantee that it will actually stay secret,”  [media lawyer Mark Stephens] said.” The Daily Mail reported that Giggs had spent £150,000 on lawyers to keep the details of his affair secret, but paradoxically, the greater his efforts to keep the affair secret, the more publicity it has received (a clear instance of the ‘Streisand effect‘ at work yet again). As publicist Max Clifford noted in the Mail article linked above, Giggs might have been better off not to resort to the law at all. He is now alleged to have started proceedings against Twitter and “persons unknown”, using the initials ‘CTB’. This rather nice graph at the Guardian shows how mentions of Giggs’ name spiked on Twitter on 20 May once his proceedings against Twitter were announced:

Could those who mention Giggs’ name in the UK be the subject of legal proceedings? It is estimated that about 30,000 Twitter users have breached injunctions by tweeting the identities of various people covered by those injunctions. It has also been reported that the Attorney-General is considering whether to prosecute a journalist for breaching a privacy order involving a different footballer. Meanwhile, a Scots newspaper published details about Giggs, arguing that English law did not extend to Scotland, although — despite the recent success of the SNP in elections — this would seem doubtful.

With impeccable timing, the Master of the Rolls of the UK Court of Appeal recently released a report about “super injunctions”. In summary, the Committee concluded:

  • The principle of open justice is a fundamental constitutional principle which should only be derogated from where “strictly necessary in order to secure the proper administration of justice”;
  • There is a difference between super-injunctions (which retrain a person from publishing confidential and private information about the claimant where the very existence of the injunction may not be disclosed) and anonymised injunctions (which merely restrain a person from publishing confidential and private information about the claimant where the names of either or both of the parties to the proceedings are not stated);
  • Since Terry v Persons Unknown [2010] 1 FCR 659, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential;
  • “As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent. Where super-injunctions and anonymised injunctions are granted they should be kept under review by the court” and they should have clear return dates (pursuant to Terry);
  • In the recent past, super injunctions and anonymised injunctions have also sometimes been more widely used than is strictly necessary by UK courts; and
  • A new procedure should be developed which allows the media to be informed of such injunctions in advance, although there may be times when this is not appropriate.

Interestingly, the Committee did not consider new media or the difficulties associated with controlling it in any detail. One of the key questions is whether such orders can effectively be enforced against entities such as Google and Twitter. Giggs’ case may represent a testing ground in this regard. Another difficulty is that many users are anonymous, and thus it is difficult to find out who they are. Further, it is difficult to restrain publications outside the jurisdiction (as the Spycatcher cases showed in an earlier era).

As it was noted in The Independent, the anonymised injunctions which Twitter users are breaching are only those involving the alleged sexual indiscretions of celebrities. Recently, UK Twitter users have been banned from identifying a brain-damaged woman whose mother wishes to remove life-support, but no one has breached this order. Since 2000, with the enactment of Article 8 of the ECHR (protecting privacy) into UK law, there has been an expanding use of breach of confidence in the UK to restrain breaches of privacy (see eg, Campbell v Mirror Groups Newspapers Ltd and Douglas v Hello! (No. 3) ). Perhaps the public are reacting by reasserting the sentiments of Lord Denning in Woodward v Hutchins, a case dealing with unsavoury allegations in the Daily Mirror newspaper about the private life of Tom Jones and other pop stars. Denning LJ said:

If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected … In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.

Celebrities seek publicity in the press in exchange for public adulation, but audiences often want a more “true” picture than the highly managed images the celebrities want to project. Perhaps this is why Twitterers are particularly wont to breach injunctions relating to celebrity privacy. Perhaps they dislike hypocrisy (self-presented “family man” turns out to be a serial philanderer etc). Or perhaps it’s simply the Streisand effect writ large – the very fact that the information is prohibited is what makes it attractive and interesting to people.

Ken Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases:

My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.  Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information.  The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating.  In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries.  Most people lived in villages and knew everyone else’s business anyway.  Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Like Ken, I feel that we do not have a right to prurient information about celebrities: but whether the law can actually control the dissemination of such information in the present climate is quite another question.

18 Comments

  1. kvd
    Posted June 2, 2011 at 5:15 pm | Permalink

    Obvious non lawyer thoughts, but I thought this term ‘super injunction’ referred to the UK’s courts seeking to prevent even Parliament discussing, mentioning, acting upon, etc., cases subject to “normal” injunction?

    There’s been a number of instances where a MP has been potentially constrained from representing either his constituents, or the interests of the public, in the face of a threat from the courts that his actions might be actionable. Recently there was a Parliamentary Committee hearing on just this point, I think.

    Call me old fashioned, and I could care less about footballers’ sex lives, but if this is an extension of what you are talking about, then I think the courts are overstepping themselves.

  2. kvd
    Posted June 2, 2011 at 6:04 pm | Permalink

    Just to be clear, I’m referring to stuff like this

  3. Posted June 2, 2011 at 6:09 pm | Permalink

    Not strictly, KVD (though I’m a fellow non-lawyer). Yes, “super” injunctions ban not only the naming of the parties but any mention of the existence of an injunction by either party or onlookers, but they’re not specifically related to parliament at all. It just happens that the “cowards castle” rule has been invoked (appropriately I think) to stop court authority from creeping over that of parliament which is supposed to be kept superior.

    LE, my understanding of the Record’s argument was not that English law “didn’t apply”, but that having a separate Scots Laws system means Scotland is effectively another publishing jurisdiction as much as France, say… though in France celebrities actually have MORE privacy protection. The injunction wasn’t valid in Scotland in this instance (the lack of specific mention was also the Twitter loophole up until this point, but judges are now learning).

  4. kvd
    Posted June 2, 2011 at 6:24 pm | Permalink

    Twiiter, and titter aside, DEM, and am conscious of the lawyers sitting back and laughing about two non-lawyers discussing this, but if a court is seeking to superimpose its authority upon that of the parliament, then I’m against.

  5. Posted June 2, 2011 at 10:54 pm | Permalink

    Any wonder we’re so confused!

  6. Posted June 2, 2011 at 11:09 pm | Permalink

    That might (I stress might) be something to do with the way interdicts work in Scotland. Because Roman law has no equitable jurisdiction, you get your interdict as of right – there is no discretion for the judge. However (as in England), the penalty for breach can be a contempt ruling, and contempt of court in Roman law is the same as at common law – do not pass go, do not collect £200, go straight to gaol!

    This means you need to be very, very precise when defining the scope of the interdict (well, that’s what dear Hector MacQueen stressed in Unjustified Enrichment). If that specificity doesn’t include jurisdiction, I’ll eat my hat.

  7. kvd
    Posted June 3, 2011 at 4:30 am | Permalink

    [email protected] thanks for a clear explanation of the levels of injunction. I believe from reading that Hansard I referenced that the MP was Hemmings.

    I accept I’m straying from the point of your post, but this discussion of competing rights is really quite interesting to me. While understanding DEM’s use of the “coward’s castle” term as sometimes appropriate, I still think that parliament holds or should hold the absolute final right to itself to represent the people.

    Last week I was watching a Senate Estimates hearing where Senator Xenophon was questioning the deputy head of Customs, seeking confirmation that a specific officer of that department had or had not been interviewed by the AFP. Despite several attempts he was unable to get an answer to his question – even though it was happily acknowledged that the public servant was in a position to know the answer. I neither know nor care about the need for Xenophon to be informed, and would have been happy if the information was given in closed session, but this was basically a flat refusal to answer the question.

    I guess it is unrelated, but it left me wondering just where the interests lie between an elected representative of the people, and the public service. I mean, there must be some point at which members of parliament should be considered to be the ultimate holders of ultimate power? Sorry for straying.

  8. Posted June 3, 2011 at 6:11 am | Permalink

    I put up a companion post – http://belshaw.blogspot.com/2011/06/twitter-privacy-court-system.html – just to encourage discussion here.

    The issue that KVD raises here and in a comment on my post are interesting, and one that I had not focused on.

    Quite simply, in constitutional theory parliamentary privilege is an absolute and cannot be bound. I do not understand superinjunctions at this point, but if the court is purporting to bind what can be said in Parliament, then I would have thought that this was a major constitutional issue. Or am I just confused?

  9. kvd
    Posted June 3, 2011 at 6:21 am | Permalink

    Thanks LE. I remain uncomfortable with a public servant effectively being the person deciding where that balance lies, irrespective of the issue. Probably good that I’m not in Xenophon’s position, because I would have taken it much further, at least in closed session.

  10. Posted June 3, 2011 at 7:20 am | Permalink

    Jim, that’s how parliament was described based on what I’ve been taught this semester. Parliament itself gets to play judge and jury when it comes to MPs conduct in parliament.

    However, based on LE’s description of hyper-injunction, it’s a limit on what other’s can tell MPs, not on what MPs can do themselves. I think this is still overreaching the constitutional powers of the courts and think that communicating with an elected representative should be a right that always trumps any right of privacy (but then I don’t consider privacy an important issue generally). If an MP wants to abuse parliamentary privilege to invade someone’s privacy its up to parliament or the people to hold them accountable, not the judiciary.

    LE, are these injunctive powers the courts have come up with themselves, or is there some legislative backing for these types of injunctions?

  11. RipleyP
    Posted June 3, 2011 at 9:46 am | Permalink

    KVD, I would add my encouragement and appreciation to that of LE. I may be a lawyer but I get a headache when it comes to this style of injunction and have very little to add.

    One of the main issues I have faced in considering the use of injunctions has revolved around who is seeking the injunction. I often think that there is a difference between the celebrity injunction and the commercial secret or personal injunction.

    The celebrity I accept is a person as deserving of privacy as the average person in life. Yet celebrity is also a product that sells and the private person behind the celebrity profits from sale of the product.

    For me I have found this to be a contradiction in my own thinking that has prevented me from ever fully finding a solution. For me there is a difference between celebrity injunctions and more personal injunctions such as the life support example that in some ways requires a rethink of personal and commercial.

    It is the issue of whether the celebrity is a commercial or a personal injunction I have struggled with.

    Of course the accidental celebrity will be basically lost in the clouds regardless.

  12. Posted June 3, 2011 at 11:58 am | Permalink

    The more I think about this, the harder it gets (BTW fab post LE, I should have said that earlier). I get the notion of privacy protection, and having read the Roman jurists whose ideas fed into privacy protection law, it makes sense… Ken is right, there is a big difference between ‘in the public interest’ and merely ‘interesting to the public’. That said, I’ve long believed that no matter how well intentioned or well theorized a law (and privacy laws are both, unlike some other very bad law), if there are means-ends limits that ensure its failure, then you have to give it up.

    Really tricky, though.

  13. Posted June 3, 2011 at 2:11 pm | Permalink

    Reading LE’s great post, I was struck by folk abiding by an injunction dealing with a life-support case. There seems to be a difference in the public mind between privacy about serious matters and privacy to behave badly.

    Of course, if error has no rights, then there is no real liberty. If liberty does not include the right to be wrong, it is void. Privacy would seem to be similar, given that liberty and privacy are so deeply intertwined.

    That folk do not have a right to know something does not mean that other folk have a right to stop them knowing it. That there is no obligation to inform does not mean there is some obligation to ensure they are not informed. There seems to be something of an excluded middle here.

    There also seems to be the old issue of ‘ought’ implies ‘can’. One has no obligation to do the impossible. There seems to be some need for a “it is now in the public arena” acknowledged category.

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