I’ve been understandably busy the last few weeks so have largely watched the story unfold from the sidelines. I will have a stab at a few observations.
Superinjunctions are More Likely
Like I said before, very few of the cases under discussion involve superinjunctions. They are very rare. I suspect they will be less so after this case.
Superinjunctions are granted because granting an ordinary injunction will defeat the purpose. What we have seen writ large is a very clear argument in favour of increasing the use of superinjunctions. The press reacted to their being injuncted by engaging in a cat-and-mouse game of jigsaw identification.
Knowledge of the fact that an injunction had been granted spurred people on to try and break it.
The net result is that claimant lawyers are going to be able to argue with more cogency that only a superinjunction will protect their rights, as any discussion at all will otherwise risk it being blown wide open.
Internet Enforcement is Possible
It’s very easy to think that the authority of the courts does not extend to as distributed a network as the internet, and that you can stick two fingers up to the law online and get away with it. This is massively short-sighted.
The law may not be able to police the flow of data in the way it can a physical person or location, but it can exercise a great degree of control over the users of the internet within its jurisdiction. Safety in numbers is also an overblown fantasy.
Enforcement online against the distributors and users of child pornography has been extremely effective to the extent that it is very hard to find it in a medium supposedly as anarchic as the internet. Similarly, efforts against the online presence of jihadist groups in the past have ensured that they lack the security and stability that many come to associate with the internet. When authorities want to enforce their will against those breaking the law online, they are very capable of doing so.
Second, there is no strength in numbers. You do not have to go after every one of the 75,000 Twitter users who reposted CTB’s alleged identity to have the desired effect. You go after those in the press who spread the information online, and then a random segment of Twitter users. By creating a risk you can have the desired chilling effect.
It is surprising how quickly the idea that you can chill speech online has been forgotten given that Twitter’s previous causes célèbres, libel reform and #twitterjoketrial, have had this as their focus. The latter is particularly instructive. Depending on who you listen to, Paul Chambers was prosecuted to scare people off making flippant bomb jokes on Twitter. Even though there was the #iamspartacus campaign soon after that retweeted his original statement, you’ll see that people are now very careful to either not make those sort of jokes, or emphasise that it is a joke by referring to the original tweet. That’s because people are aware that the authorities are willing to prosecute you for it. There is little reason why the same could not be done in a privacy case.
The Pendulum will Swing
There may be a popular mood against privacy injunctions at the moment, but I suspect that will shift the other way as the media get over-excited. John Hemming, in particular, could well be its downfall. He has managed to jump aboard the bandwagon extremely well, combining his own personal vendetta against the family justice system with a desire for gossip about footballers. But I suspect there will come a point where this newfound feeling of popularity and invulnerability will result in public feelings of unease at what is being done in the name of freedom of expression.
Take the case that Beneath the Wig reports:
Yesterday, a new Twitter account started sending out tweets containing details of what the user alleges are super-injunctions, including the case referred to by John Hemming on 26 April.
In referring to that case, the account publishes an address. An address which, if correct, is the home of a child.
In his desire to undermine the ‘secrecy’ of the family justice system, Hemming has, quite possibly, put a child at risk. It was reasonably foreseeable, given what is out there about this case, that someone would do this.
Sadly, I suspect that more of this will happen.
Parliament Will not Legislate
Or, if they do, it will be a largely cosmetic “change” in the law (much like some of the Compensation Act 2002). Even if the law is not quite to Parliament’s liking, whatever they come up with will almost certainly not be to the media’s liking. I doubt many MPs would want to face the criticism that the papers would heap on them if they dared suggest that there are things the media ought not to do. So I suspect it will be kicked into the long grass.
A Shift to Intrusion
After the widespread naming of CTB on Twitter and in a Scottish newspaper, the papers failed to get the injunction overturned. The reasoning is interesting. I post below the entirety of the judgment below (emphasis mine):
Mr Justice Tugendhat:
1. At about 1430 this afternoon Eady refused NGN’s application to remove the anonymity he had granted to the claimant on 20 April. He said at para 23 ( EWHC 1326 (QB)) that “It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion”. Intrusion in this sense includes harassment.
2. Very shortly afterwards a name was mentioned by Mr Hemming MP in the House of Commons in the course of a question which was interrupted by the Speaker. On that basis NGN asked me to hear a further application shortly after 5pm for the anonymity of the claimant to be removed. As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.
3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.
Whether or not this is new law is not for me to say. But what is interesting is the focus on the modus operandi of the media, and not just the nature of the information they seek to publish.