As the BBC’s technology correspondent has pointed out, speculation about the identity of privacy injunction claimants has been rife on Twitter for some time. Rory Cellan-Jones tweeted:
“Rather weird that Twitter has been alive with super-injunction details for weeks – but one new account with inaccurate reports is news.”
Despite that, the Daily Mail’s front page today proclaims ‘Gagging Law: Now Fiasco on Twitter’.
And the Twitter account in question, now with over 37,000 followers, has received widespread national news coverage.
The BBC Radio 4 Today programme’s legal correspondent, Clive Coleman, reported:
“The posts on Twitter point up what for some time has been a concern that there’s one rule for the mainstream media and little or no rule for individuals publishing in breach of injunctions online.”
But is that a valid concern? The mainstream media has also got away with some heavy innuendo about the identities of the claimants – so far.
Those breaching the orders may well face serious penalties. One leading media law lawyer told me that the view is that people are testing how far they can go with the injunctions.
Sooner or later someone will take committal proceedings or sequestration proceedings, he suggested.
“Once someone loses a lot of money people will think twice about giving information that helps to identify the claimant.”
Another media lawyer, a specialist in privacy law, told me that both social media users and mainstream media organisations should consider the risks involved. A social media user who is aware of the injunction posts the name of someone whose anonymity is covered by the order commits a criminal contempt of court, he explained. Unless they have taken serious steps to conceal their online identity then their identity can be found out by means of a Norwich Pharmacal order. The lawyer commented:
“These are cases in which judges have decided that anonymity is appropriate after considering. It is shocking that arrogant individuals who know nothing about the cases or the circumstances of the people involved think they know better than the courts”.
The mainstream media are also taking serious risks on this – after all, in many of these cases the media has agreed to the terms of the order in court. At some point the Attorney-General could step in and bring contempt of court proceedings, the lawyer suggested.
“many appear to be forgetting is what the practical effect of an order granting a superinjunction actually is. The Order will usually contain a penal notice which states very clearly that not only will the Respondents be in breach and potentially guilty of contempt if they reveal any details of the injunction, but so will any third party who is not a respondent in the proceedings but is aware of the injunction and then goes on to leak its details.
“This will cover any comments made on social networks and despite what some commentators are saying this morning, anyone who publishes details on a social networking platform such as Twitter is not immune from the consequences of what they post.”
Kuncewicz suspects, however, that in practical terms, celebrities and public figures involved “will probably not want to spend even more in legal fees pursuing every user of Twitter – and there are a lot of them – who have repeated the rumoured details of the various superinjunctions in force”. But he adds that the court
“may respond much more favourably to contempt proceedings, especially after a recent case which saw two national newspapers convicted of contempt after posting photos of the defendant in a murder trial posing with a knife on the morning of the hearing.”
Meanwhile, legal writer and broadcaster Joshua Rozenberg suggests that there is a difference between publishing information on Twitter and on a news site. He told me:
“The point strikes me as fairly simple. If you tell me that someone is having an affair and I publish this fact on my personal website or on Twitter, I cannot be in contempt of court if I did not know that a court order existed.
“It’s different if I publish it on the Guardian website and the newspaper has been notified that the individual concerned has taken out an injunction.
“That individual is unlikely to serve a copy of the order on me, as a humble Tweeter. If he served it on everyone with a Twitter account, it would no longer be private.”
In a piece for the Guardian, published today, Rozenberg challenges the view that judges will be agonising over the breaches. He argues that the problem is for the person who took out the injunction and the person who breaks it.
“If a privacy injunction is to work, the person who takes it out will have to notify media organisations that might otherwise publish the information it covers. If journalists have information that they are not allowed to publish, they may well decide to leak it. That’s a problem for the person who took out the injunction and for the person who breaks it – but not for the courts.
But is a larger scale media strategy at play? The blogger and lawyer David Allen Green suggested on Twitter that it was very convenient to stir up a fuss about Twitter and super injunctions the day before the European Court of Human Rights judgment on Max Mosley’s case is due. He tweeted:
“The mainstream media desperately want to discredit an adverse Mosley judgment on injunctions. Be skeptical what they tell you this week.”
Secondly, reporting on Twitter breaches allows the media to air the argument that false allegations are damaging to privacy claimants: all more fodder for their argument against stringent privacy orders.
One of the lawyers I spoke to suggested that the media knows there is no public interest in the story but are trying to undermine privacy law for their own commercial reasons.
The Mail’s tactic is particularly curious. In a separate story published on Sunday, the newspaper jumped upon what looks like a spoof ‘redacted’ Twitter account, to suggest that:
“In a direct breach of a slew of draconian court orders issued over the past few months, a blogger tweeted the names of celebrities to thousands of internet users.
… However, the names of the stars and certain key facts that could reveal their identities have been replaced by the term ‘REDACTED’ – a legal term to describe the removal of sensitive material.”
Bizarrely, the reporter Ted Thornhill suggested:
“It’s not known whether Twitter itself was responsible for blocking the comments.”
(The article, right, seems to have been replaced online with the text from today’s front page story by Chris Greenwood, about a far more controversial Twitter account)
The irreverent legal blogger ‘Love and Garbage’ was bemused to see the Daily Mail report on this ‘Redacted’ Twitter account. While he was not behind this @superinjunction Twitter account, he had previously published a similar spoof blog post on his site. He said:
I’m amused that someone shared my idea to spoof the fact there was no real information out there and my blog posts made the point that much of the stuff on the internet around the super injunctions is untrue.
“The [redacted] super injunction account is quite witty with its [redacted] comments saying nothing and making an effective point on the order, and the Mail suggesting it was censored by Twitter was amusing.”
‘Love and Garbage’ finds the other – legally risky – super injunction Twitter account featured on the Daily Mail’s front page “outrageous” – particularly “as it appears to be based purely on the twitter rumours from previous weeks, and has no foundation,” he said.
So where next? Lord Neuberger’s committee on privacy and super injunctions is expected to report very soon, although the extent to which they will address the issue of internet breaches is unknown.
Finally, it might be worth noting that the Press Complaints Commission seems to have been keeping very quiet. One lawyer commented:
“It is particularly surprising that the PCC has done nothing in relation to any of this. Newspapers are setting out to frustrate court orders”.