As far as I can see, the Review of the use of super injunctions by a Committee headed by the two senior judges in the UK is: “no change except at the procedural fringe”. The Review more or less throws down the gauntlet to Parliament and states that it has either to change the law, otherwise the Courts will continue onwards as before.
The suggested procedural changes act at the superficial level, shorter periods for super injunctions, more review of their necessity, more openness in judicial procedures, and more involvement in the media in general. But the main message is business as usual.
Twittering on about the first Twitter
The Review did not consider the impact of the social media and the undermining of the secrecy associated with super injunctions. However at the press conference, the Master of the Rolls stated that this was an issue that had yet to be addressed. I gained the impression that he did not like the social media undermining an injunction – the implication being that the Courts might be sympathetic to attempts to find out how secret details first got onto the social media.
So how would I try to identify the “the first Twitterer" in the light of the current super injunction. But before I start, I have no evidence for what follows and the text is pure speculation.
I start from the fact that identifying details of the parties to a secret injunction somehow got onto Twitter. As these were secret, this means that the original Twitterer has to be someone close to the parties to the injunction or someone in the Court or handling Court papers.
That person could be the target of any investigation. Despite what the owners of Twitter have publicly stated, subpoenas that require the release of the identifying details of account owners have been issued and granted by the Courts in the USA. This is one factor that could lead to the identification of Twitterer No. 1. So I would try my luck in the States.
The prime reason that the first Twitterer had for the release of identifying detail was to allow other elements of the media to report the “existence of details” on Twitter. This means there had to be a mechanism for the existence of the first Twitter to be reported to other elements of the media (e.g. contact by phone or some other means to point the other media to look at a certain location). So identification of "Twitterers numbers 2 to 10" is the second lead that could lead to the identification of "Twitterer No. 1".
So where to find that mystery first Twitterer? Well the answer to that question, I suspect, can be found in the speeches of Marcus Tullius Cicero who, in 80B.C. asked a simple question: “Cui bono?”. In this case, the fact that some details are in the public domain, could allow the actual party to the injunction to present arguments for full detail in the public domain. This is the third lead to the identification of Twitterer No. 1.
I conclude that if social media were to be regularly used by the press in order to get around injunctions, then a reaction from the Court can be expected (e.g. by Court ordering the release of details: this has already occured, see references re Out-law).
(Note added 12hrs after the blog was posted: the BBC News are reporting that the footballer in question has now asked a Court for an order to obtain such details from Twitter).
More about “t.hat footballer super-injunction”
If there is to be no change to the law, then the recent publication of further super injunction details by the judge of the case, becomes very instructive as to the current state of the law. It clarifies in different words (see blog of 27th April) how the main balances are applied. In granting an injunction, Eady J explained in his judgement that:
“I have to consider whether there would be a legitimate public interest in the revelation of this particular information, in so far as it is not already in the public domain, and whether publication would contribute to "a debate of general interest", in the sense conveyed by the European Court of Human Rights in such cases as Von Hannover v Germany (2005) 40 EHRR 1.
This means that Eady J considered:
“Would it (i.e. disclosure to the public) help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or again, echoing the terminology of the Press Complaints Commission Code, would publication in some way prevent the public from being seriously misled?
In general, Eady J says that the Court apply the following balancing tests:
i) “No one Convention article has as such precedence over another”.
ii) Where conflict arises between rights under Article 8 and Article 10, an "intense focus" is required in the particular circumstances of the case upon the comparative importance of the specific rights being claimed.
iii) The court must take into account the justification put forward for interfering with or restricting each right.
iv) The proportionality test must be applied to each” (Article 8 or Article 10)
In relation to injunctions in general, Eady J makes two important comments:
As in so many “kiss and tell” cases, it seems to me that the answer, at stage two, is not far to seek”. (i.e. it is usually obvious whether there is a public interest in publication or not)
“The courts will have to apply this methodology unless and until Parliament decides to legislate to different effect”. (This says to Parliament: if you want changes, then make changes – the main message from the just published report).
In the particular case of granting an injunction, Eady J states that
The newspaper did “not even argued that publication would serve the public interest”
“The evidence before the court at that point, therefore, appeared strongly to suggest that the Claimant was being blackmailed (although that is not how he put it himself”).
The evidence also pointed to entrapment, where meetings between the footballer and the woman were engineered to support the story of a continuing sexual relationship.
The judgment states “It seems, nevertheless, that The Sun was ready to take advantage of these prearranged meetings in order to be able to put forward the claim that it was The Sun which had found him “romping with a busty Big Brother babe”.
Hence Eady J concluded that “On the evidence before me, as at 14 and 20 April, I formed the view that:.
• “the Claimant would be "likely" to obtain a permanent injunction at trial, if the matter goes that far. As I have said, it remains uncontradicted (by the press)”
• “The information is such that he is still entitled to a "reasonable expectation of privacy"
• There was “no countervailing argument has been advanced to suggest that the Article 10 rights of the Defendants, or indeed of anyone else, should prevail”.
• “There is certainly no suggestion of any legitimate public interest in publishing such material”.
This super-injunction's review won’t change the above balancing act. Indeed, any new law enacted by Parliament cannot fundamentally change this balance, unless the UK Government pull out of the European Human Rights Convention. So prepare for a lot of talk and “tut-tutting” from many observers, heads sagely shaken and claims of “we must look at this”. However, I think at the end of the day there will be no change in the law. As I said at the beginning: “business as usual”.
The real risk is that if the press deliberately set out to undermine injunctions by using social media, then the social media could well be on the receiving end of demands for disclosure of identifying details. In other words, undermining the secrecy of an injunction could well undermine the anoniminity of the Internet.
Further injunction details from J. Eady’s: http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html;
The important Human Rights case that underpins the UK Court's approach to injunctions: Von Hannover v Germany http://www.bailii.org/eu/cases/ECHR/2004/294.html
Report into super injunctions (URL at bottom of Press Release) http://www.judiciary.gov.uk/media/media-releases/2011/committee-reports-findings-super-injunctions-20052011
Also relevant is the previous detail I published about the footballer super injunction on 27th April 2011: http://amberhawk.typepad.com/amberhawk/2011/04/privacy-the-press-press-regulation-and-super-injunctions-more-heat-than-light.html
Outlaw's article: "Injunction footballer wants to search journalists' email and text records (from http://www.out-law.com/page-11929)
FOI courses start in London on 13 June; next DP courses start on July 13 in London. Next Update is October 17th 2011 in London. We have timetabled our Audit, Privacy Impact Assessment, and RIPA courses for September 12th, 13th and 14th in London. Full details on the Amberhawk main site (www.amberhawk.com).