Monthly Archives: May 2011

V For Vendetta – More Superinjunction details leaked over Twitter: Is this the last straw?

Superinjunctions and legal proceedings against Social Networks are all over the news at the moment, and although no-one has as yet been held to account through the Court for revealing the public figured behind them on Twitter, it looks as if that may not be too far away.

Yesterday, an anonymous Twitter account posted the alleged details of the Claimants behind no less than thirteen superinjunctions, as well as some of their addresses and links to Court documents which related to them. This time Twitter took action quickly and removed the Tweets in question, but not before the names had begun to make their way around other websites and social networks, although the validity of the user’s claims remained very much in doubt.

We’ve seen that in the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as commodities broker Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months.

However, just beacuse the public know about the details of who’s behind a superinjunction doesn’t mean that it ceases to exist. In fact, in the latest challenge to the footballer CTB’s superinjunction the Court made it very clear that widespread reporting over Twitter will not necessarily defeat an order of the Court, no matter how many times the names of the parties are retweeted. The Judge in this case drew a clear distinction between the effect that tweets can have on a victim and the impact of alleged press “harassment”  along with the details of their private lives making it onto the front page of the tablods. Even though the Attorney General has suggested that he will not for now look to take action against Social Media users for contempt of court in these circumstances and the Court has made it clear that it will usually be up to him to do so, we are coming to the stage where the Court may be forced to take some kind of action to prove a point.

Contrary to popular belief, anyone who publishes details on a social networking platform such as Twitter is not immune from the consequences of what they say. A Superinjunction 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. If this Tweeter was aware of the actual details of an injunction, and the links to Court documents may suggest that this was the case, then he may be easier to pursue for contempt than users who simply retweet the details of other posts. . In this particular case, however, the user in question has so far remained anonymous and if they are determined to stay that way as well as technically literate they may avoid virtual “capture” for quite some time.

Twitter is based in California and as such it’s very difficult to take effective action against them through a UK Court to find out who may be behind the leaks. If it were based in the UK or had assets here (it’s about to open an office in London), then as a platform it would be shielded from liability if it immediately removed tweets which contain unlawful material when notified – this lack of editorial control is not only part of many social networks’ business model (they could not feasibly check every comment to ensure that it doesn’t cause a problem) but key to their defence in the UK or EU as a “mere conduit” which makes material available over the internet but has no control over the content itself. Twitter have so far refused to comply with CTB’s order obtained through the UK Courts to reveal details of users who retweeted his identity even if they did hand over user details to South Tyneside Council this weekend after a Court Order was obtained against them in their home state. Twitter’s rapid action in this case may well be an attempt to placate their UK-based stakeholders and reinforce their recent and very clear commitment to comply with any valid Order which compels them to reveal user data.

The Courts will now have no choice but to really get to grips with the practical issues which social media commentary creates in ongoing proceedings, especially those which are intended to remain secret. The last few years have seen criminal cases involving obscenity in blogs, harassment and cyber-bullying through Facebook and the relatively new offence of “misuse of a public electronic communications network” – the notorious “Twitter Joke Trial”. Each of these cases is a salutary lesson that although social network users can hide their presence through false profiles and may not be worth pursuing if they simply wouldn’t be able to pay damages or costs in a civil claim, they are not immune from sanction and it’s probably only a matter of time before at least one member of the Twitterati is held accountable for the content which he or she posts.

However, against the backdrop of John Hemming using parliamentary privilege to name CTB last week, the Attorney General may not be willing to take any real action until the tension between Parliament and the Judiciary over privacy law is resolved. Courts may intervene in certain circumstances but the requests for them to do so in this kind of case have so far fallen on deaf ears. For now at least, Twitter remains open to misuse without extreme sanction but this won’t last forever – as the stakes are raised with every passing incident, so will the desire to find out who’s openly defying the Judiciary.

Advertisements

Do Not Adjust Your Set-Twitter Hands Over Details, but NOT to CTB

This is the second time I’ve blogged over the apparent disclosure of Twitter user details to support a lawsuit at a ridiculous hour this week, but it’s worth it.

The Telegraph is leading with a front page story bearing the headline “Twitter Reveals Secrets”.

Don’t panic.

Twitter has NOT handed over user details to CTB so he can sue for breach of privacy or violation of his Superinjunction. CTB has made an application in a UK Court for disclosure of user details from Twitter, who are based in the US and have no assets in this jurisdiction. It is very difficult to enforce a UK Court Order in the US. Our privacy law, based on a combination of the European Convention On Human Rights, the Data Protection Act 1998 and the law of confidentiality, doesn’t apply there. US privacy law is,as I understand it, pretty different.

Twitter has disclosed details of users on the request of South Tyneside Council, who are looking to take action in defamation against a whistleblower called “Mr.Monkey” who has accused Councillors of criminal offences. A Council can’t sue for libel in its own right but individual Councillors can. They’ll need to find out where he is to work out if this is possible, and they have obtained the order in California under Californian Law. The allegations of criminal misconduct will probably be libellous in California-they certainly are over here, although if Monkey is a whistleblower he or she may be protected by defences in public interest or justification. In the UK courts, making such an application for disclosure requires a case with strong merits brought by the eventual claimant in a claim and as the Council can’t sue for libel this will teach us a lot about hoe the US and UK courts deal with this kind of legal redress.

Yes, this is a big deal. But it’s a big deal in US law, not ours. We grant orders like this against UK companies fairly often. CTB should have gone to California and done the same thing. The law may be different, but his odds would have been better and he wouldn’t have been seen as a global King Canute, just a claimant using a local system to get a local remedy.

I’m no expert in US law, but I’ve been tweeting with @Cathygellis, who is. For now, CTB’s critics are safe. The deadline for Twitter to comply with the UK Court Order has come and gone, with no sign yet of them caving in. This is significant from the perspective of a point of principle, but I doubt the case will help CTB’s cause.

CTB has gone from being in a battle on one front to a war on many, and there’s no flag being waved by Twitter just yet. As you were.

Tagged , ,

A Farewell To Arms – Is Twitter about to make its greatest “Fail” yet and hand over user details to CTB?

After CTB issued an application in the High Court to force Twitter to hand over the details of any users who had tweeted his name so that he could eventually sue them, many expected that the Californian Media Giant would simply ignore the Court Order granted by the Judge (which wouldn’t be enforceable in the US) and carry on business as usual, with its vaunted commitment to free speech very much intact but its sprit of anarchy slightly bruised.

We’ve waited since Friday 20th to hear how Twitter would react to the Court order and wondered if this would turn into a real united stand between Twitter and its Users against the world. What we got was very different.

Earlier this week, the Attorney General, Dominic Grieve, warned  that people who breached injunctions online were in for a “rude shock”, going on to say that :

“It is quite clear, and has been clear for some time in a number of different spheres, that the enforceability of court orders and injunctions when the internet exists into which information can be rapidly posted, that presents a challenge.

“But that doesn’t necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information which may in some circumstances be enormously damaging to vulnerable people or indeed, in some cases, be the peddling of lies.”

It now seems clear that at least some of the users of Twitter who have named CTB will face either an action for contempt of court or be sued for breach of privacy. It was bound to happen sometime. However, we still had a stoic californian hero who was beyond the reach of such petty attempts to run down its “people”, who would never do something so corporate as to comply with an (entirely correctly-granted) order of the English High Court where it simply didn’t or couldn’t apply to them, right?

No. In a statement yesterday, Tony Wang – head of Twitter’s European Operations said that the site would turn over user information to the Court if it was “legally required to do so”. Apparently. the site will notify users in advance so they can fight the Norwich Pharmacal/Motley Fool application in Court and put in their own evidence before the data is handed over. In Wang’s words, “platforms have a responsibility not to defend that user but to protect that user’s right to prevent itself”. Defending yourself is one thing, but if you do choose to go on the record, won’t CTB then know exactly who you are?

So what does this mean? They’ll hand over the data if legally required to do so, but how can they be legally required to obey an order which simply doesn’t apply to them? Compliance would set a dangerous precedent for the future. Although this may be a gesture to their new neighbours on the Shoreditch Roundabout, what kind of message will it send to Twitter’s users? Will those users leave the service en masse? I doubt it, but you never know. When the first claim forms are issued, civil disobedience may not last that long.

There may be another way  – Twitter could simply delete the accounts in question to remove the information from the site. Then of course, the users could set up new profiles, this time with an axe to grind against Twitter as well as CTB

It look as if at least some of the CTB Tweeters are going to get their comeuppance in some way, shape or form. Remember that the injunction must have been leaked by someone, despite its secrecy. That person certainly deserves their punishment for ignoring a Court order – they knew its terms and disobeyed it anyway. Getting to the real culprit (Spartacus??), however, is going to be a long and costly business and I’d be surprised if CTB really wants to fight a war on every front.

So we find ourselves at a crossroads. Twitter should hold its nerves and develop better blocking technology to ensure that they comply with the takedown provision of the Electronic Communications Regulations and can remain free to rely on the defence of being a “mere conduit”. If not, the net will become regulated and regulated fast by a Judiciary that does not yet really understand it.

If Twitter does give in where it doesn’t actually need to, then it’s finally admitted that it’s time to grow up and abandon the social media dream.  I’d like to think that that dream can last a little longer and that the “marketplace of ideas” remains open for business, even if it is under much stricter controls.

Social media businesses are encouraged to fail as part of their evolution, but this fail may be a step that forces social media to regress into itself for some time to come, and just when it was starting to mature. Give it the chance to grow a conscience and let the wisdom of crowds hold sway for a little longer. Privacy matters, but not at the cost of all else and not when the details are out there already.

CTB – The Next Chapter : Why is the Superinjunction still in place?

It’s been a hell of a week for CTB.

He’s gone from a wronged man “blackmailed” by a former lover to the King Canute of social media and the whipping boy of the anti-privacy law lobby in a matter of days, with nearly 100,000 users of Twitter “outing” his true identity.

A Scottish Newspaper, free from recourse from the English High Court, ran a story identifying him, and he’s been named by every major news outlet after Lib Dem MP John Hemming used the “get out of jail free card” of parliamentary privilege to reveal his name in the House of Commons.

But the Superinjunction protecting his identity is STILL in place, despite three attempts to overturn it. Why?

It’s a very well-worn legal principle that once confidentiality in information is lost, the Court can never put the genie back in the bottle. Once it’s in the public domain, it’s comparatively fair game. Surely CTB’s identity falls into this category?

Actually, no. In the first of two applications made on Monday 23rd May to overturn CTB’s “gagging order”, Justice Eady made his reasons for maintaining the superinjunction very clear  – even if the information is in the public domain, this is not the end of the story and each case will turn on its own facts. Even if many people – even around 75,000 of them as of Monday afternoon – are aware of the information which is protected by an Injunction, that alone is not necessarily a good enough reason to destroy it.

If the injunction is intended to protect a legitimate interest in keeping information out of the popular press to minimise humiliation, damage to feelings or the effect on the Claimant’s family, then it can survive. This is why it did until the second application of the day. Although case law says that the Court will not grant a “futile” injunction, Eady felt strongly that there was, against all odds, still some shred of CTB’s privacy (if not dignity) that should be protected – seemingly at all costs. Just because the injunction was disobeyed (described by the press as a mass exercise in civil disobedience – maybe an eye towards the Arab Spring would have put that hyperbole into context) does not, in Eady’s judgment, mean it should be discharged.

When was it going to stop? Surely everyone now knew who he was? The Sun went back to Court and made a third application to discharge the superinjunction before Justice Tugendhat. By this point CTB had been named in Parliament and was the lead story on every news brodcast. Surely this couldn’t mean that his identity was anything BUT in the public domain?

No. Justice Tugendhat refused to lift the injunction. The reason why takes us into a whole different area of privacy law  – the  Court is not only concerned with secrets, it is concerned with intrusion.

Rather than try and explain this myself, I’ll let Justice Tugendhat make his own point:

“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.”

So, as he and his family are now at the centre of press attention, caused entire by the tactically flawed approach to this case, they deserve protection from the press.

They do deserve respect for their private and family life – this is a fundamental human right. Whether or not he’s brought hordes of journalists upon himself, they still don’t have the right to harass him.

So the injunction is going nowhere, CTB has spent an estimated £250000 on legal fees so far. Can he back out now? Can the misconceived Twitter disclosure order really be worth it to go after the users, even if a few of them are the real ringleaders and actually worth suing?

Maybe it’s simply time to come clean, admit the affair, drop the cases and make your money back by selling your exclusive take on the story to a tabloid. You’d have given your side of the story and be able to move on. The row on Superinjunctions, however won’t. We’ll have to wait for Twitter to make their move in a chess game that could redfine the social media landscape for some time to come.

It was only a matter of time before an event like this hit social media, but I don’t think anyone quite expected this. What is past is prologue….

Building The Perfect Beast – CTB vs. The World

Many of the blogs I write end up being recycled in third person or anonymised form as press releases, but today of all days I’m writing it in the first person so that you know that I’m responsible for it.

I am a self-confessed social media junkie. Embracing the growing medium has convinced me that it really is a fundamental shift in the way in which we communicate with each other and taught me more than I can sum up in any number of case studies, books, interviews or seminars.

It’s also done my career no harm – I’ve managed to use to carve out my own niche and try to get across my very firm opinion that the law behind social media is simply a comparatively old (at least compared to the age of the medium) set of rules being applied to a new and evolving medium.

Some of those rules work fairly well in the online environment, and some less so. The recent Defamation Bill, for example, makes a number of very sensible suggestions as to how we can reform libel law to make it fit for its new technological ecosystem, recommending the introduction of a “single publication rule” to ensure that online content can’t be used to launch libel proceedings every time it’s viewed or downloaded, even if that takes place well past the usual one-year limitation period.

Copyright, however, has been the subject of a great deal of criticism over how it operates in the new technologically enabled world. Illegal downloading remains a major issue for the music industry, and the Digital Economy Act, which may see Internet users cut off from the web if they continue to download music, movies, films or games without paying for them, is one of the most controversial pieces of intellectual property legislation to come before Parliament in some time. Only this week, the Hargreaves Report finally addressed the issue for format shifting, making proposals that would ensure that burning a CD to an iPod would no longer be a technical infringement of copyright. (Guilty as charged).

One legal concept that has developed alongside the rise of the web and social media has been the issue of privacy. This weekend, the issue of how far privacy can really protect information in the social media age has been at the forefront of virtually every headline news broadcast after the story broke that an unnamed (although easily discoverable) Premiership Footballer had obtained a “disclosure order” against Twitter in the High Court to compel it to hand over information relating to its users who had revealed his name in defiance of a “superinjunction” granted by the Courts to protect his anonymity.

After a few years of saying it was about to happen, open war appears to have broken out between the Courts and the Twitterati. Although the Neuberger report delivered last Friday suggested that only two “superinjunctions” had been granted since January 2010, public scrutiny into these already legendary Court Orders has been at an all-time high after revelations that journalist Andrew Marr had obtained one in 2008 to restrain details of an extramarital affair and the exposing of Fred Goodwin of using the Court to restrain both details of his affair and the fact that he was a Banker. The last half of that sentence may seem like a Joke, but this is how Superinjunctions work – anyone applying for one is kept anonymous by the Court and the existence of a related injunction to keep the private information that forms the basis for applying is also kept secret.

Part of the value of being part of the Social Media world is that every now and again you get to be involved in commenting on a story as you watch it develop. My first real experience of this came back in 2009 during the Trafigura case, one of the first cases to truly focus public attention on the idea of the “Superinjunction”. This case saw the Commodities broker obtain a Superinjunction to restrain publication of an allegedly defamatory report that placed the blame for a chemical spill on the Ivory Coast on Trafigura. Before publication, an injunction was obtained to stop the Guardian reporting on its contents.

This didn’t stop the paper from dropping a few very clever hints to readers of its Twitter Feed over what might be going on and the rumour mill went into overdrive – eventually a political blogger discovered the fact that the issue had actually been discussed in Parliament after an MP raised concerns over the protection of whistleblowers at the Company and attempts to “gag” the Guardian. Soon enough the full details of the case broke, leading to lawyers for Trafigura writing to every member of Parliament to try and stifle further debate and kickstarting the very active review of the UK’s defamation laws.

The current Twitter case is a little different. It deals with the issue of Privacy. Privacy law is an amalgamation of several different legal concepts – data protection, confidentiality and human rights. After the Max Mosley case in 2008, the Courts made it very clear that as far as they were concerned the sex lives of anyone in the public eye would very rarely qualify as being disclosable by the press in the public interest, no matter how interesting to the public they may be.

The Press was outraged, with Daily Mail Editor Paul Dacre in particular taking on the alleged “Architect” of modern Privacy Law, Justice Eady, in the popular media and lamenting both the death of “kiss and tell” and the apparent “chilling effect” of privacy law on investigative journalism. Regardless, the law of privacy has developed quickly since Mosley and a number of cases have been heard which have helped to define its scope, many of which haven’t involved any application for a Superinjunction.

Those cases have not, however, had to deal with the real elephant in the room – Social Media itself. Famously, Tiger Woods obtained an injunction (a regular one) to stop details of his own extramarital affair being reported on in the UK. Many pointed out that this seemed pretty futile when the gory details were easily available via US websites which could be read in the UK. If these websites couldn’t be forced to obey a UK Court order, then what was the point? Surely the genie was already out of the bottle?

This brings us to the developing story of CTB, the claimant at the centre of the current showdown between Twitter users and the Courts.

CTB’s story begins around a month or so ago, when former Big Brother Star and Glamour Model Imogen Thomas gave an interview to the Sun in which she revealed her affair with a married Premiership Footballer. CTB’s Lawyers sprang into action and almost immediately an application to keep details of the affair private was underway. On 14 April, CTB was granted what the Sun described as a “gagging order”, but this again didn’t stop Twitter users from speculating over who he really was. Within hours, his name was trending on Twitter.

What came next made what was intended to remain a private matter even more public. The Twitter Account “@injunctionsuper” was set up in the name of “Billy Jones” on 8 May and in spite of only posting six updates had already attracted nearly 23,000 followers in around 24 hours.

Why? He named a number of celebrities, including socialite Jemima Khan, alleged to have obtained superinjunctions to stop details of affairs and other disputes going public. Khan in particular went on the record quickly to deny having gone to Court, but CTB didn’t. His affair with Thomas was apparently “confirmed” and the story, which many may have thought was starting to run its course took on a whole new life. Many members of the Twitterati already had a very good idea of who CTB is, and @injunctionsuper claimed to have removed all doubt.

These cases, along with David Cameron’s recent public “unease” over Judges creating “a sort of privacy law whereas what ought to happen in a parliamentary democracy is Parliament, which you elect and put there, should decide how much protection do we want for individuals and how much freedom of the press and the rest of it” and the recent decision by Mr. Justice Eady in OPQ v BJM that saw him issue a “Contra Mundum” injunction enforceable worldwide and in perpetuity to prevent the publication of ‘intimate photographs’ of a married public figure after a woman tried to sell them for a ‘large sum of money’ have reignited debate over how far the UK’s developing privacy law should be able to restrict freedom of the press.

There are, as always, two sides to this argument – on the one hand, celebrities are increasingly turning to the law of privacy to suppress negative coverage, severely limiting the freedom of the press and depriving the public of information about which they may feel they have a ‘right to know.’

On the other, the press are also increasingly running stories which have nothing to do with ‘the public interest’ to fill column inches in an environment where the Press Complaints Commission is seen as largely powerless to take any real action to compensate a victim once a controversial story has been run. The recent “phone hacking” scandal and public apology from News International for their unlawful surveillance of several high-profile figures has shown how far the press may be willing to go to obtain a scoop.

Privacy law reached its high watermark (so far) in the now-infamous battle between Max Mosley and the News of the World in 2008 over allegations of Mosley’s involvement in a ‘Nazi orgy’ and the leaking of a video of the event online. Mosley was successful, winning damages of around £60,000 and setting out the basic ‘road map’ to the new approach to privacy law following the coming into force of the Human Rights Act in 2000.

The Human Rights Act brought the European Convention on Human Rights into English law and requires the court to take its provisions into account wherever possible. In privacy cases, the court must consider whether or not there was a ‘reasonable expectation of privacy’ in the information in question which can be protected by the Claimant’s Article 8 right to respect for private and family life (dependent in many cases upon whether or not the Claimant courted publicity) and then perform a ‘balancing act’ with the Press’ Article 10 right to freedom of expression.

The most important consideration in this balancing act is usually whether or not the information in question can be justifiably disclosed in the public interest. This does not cover information that is simply ‘interesting to the public’ and in Mosley’s case Justice Eady made the point that a publication, which reveals sensitive information for the sake of ‘titillation’ or satisfying public curiosity, can never be justified. In his opinion, ‘the sex life of any individual is essentially his or her own business.’

Even when freedom of expression sees the balancing act come down in the press’ favour, for example to expose illegal activity, to avoid the public being misled or to contribute to a genuine public debate, his will not allow the publication of ‘every gory detail’ and in particular, stories involving the sex lives of those in the public eye will normally be much harder to justify.

Nevertheless, the start of 2010 saw then-England captain John Terry at the centre of the privacy law debate after obtaining a ‘superinjunction’ banning any reporting of his alleged extramarital affair with lingerie model Vanessa Perroncel as well as any reference to the fact that the injunction itself even existed. The decision in Terry’s case came amidst increasing criticism of what was described as a ‘back door privacy law,’ and the ‘superinjunction’ was overturned after Mr. Justice Tugendhat found it to be unnecessary – the information which it covered was already relatively widely known within the sport, and in his opinion, Terry applied for the injunction more to protect his commercial interests and sponsorship deals rather than his private life.

If a claimant becomes aware of impending negative press attention and has a very strong case in either defamation or privacy against the publisher for which an award of damages would never truly compensate them if the details became public, then an, injunction may well be the only realistic option. They are not easy to obtain, ‘superinjunctions’ even less so, and are only granted in cases where allowing the publication to go ahead will cause more harm to the claimant than restraining it would do to the newspaper.

In the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another as Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months. It was for this reason that the BBC’s attempt to keep the identity of the Stig secret through an injunction failed – his real name was being widely referred to on the Internet and in accounts filed at Companies House.

Again, just as the furore over CTB’s injunction against Imogen Thomas was beginning to move away from the front pages, the whole cast of characters found themselves back in Court on 16 May for the “return date” of the Superinjunction.

Superinjunctions are usually granted “without notice”, with the Court only hearing evidence from the Claimant. In this case, and providing that the evidence is strong enough to convince the Court that if the injunction sought is the only real way to prevent immediate harm being caused to the Claimant, that if the information got out would be no amount of damages which could compensate him and that the privacy case against the Defendant seems very strong, then the Return Date will allow the Defendants the opportunity to make their arguments against the injunction remaining in place.

If the Court is convinced that the injunction should remain in place, then it will do so until the eventual trial of the Claim for breach of privacy between the Parties. The Trial will, of course, also take place under strict secrecy.

Thomas and the Sun went to Court on the 16 May to make their case. In a scathing judgment, Justice Eady made his opinion of Thomas very clear – despite her claims that CTB was “the love of her life”, he stated that the evidence put before the Court on 14 April suggested that she was “blackmailing” CTB and had asked him for £100000 not to go public as well as attempting to set him up by arranging liaisons at which Journalists would be waiting for him. Thomas described herself as “stunned” by the allegations and bemoaned her inability to put her side of the story under the threat of the injunction, as well as the immediate damage to her own reputation as a result of the ruling. Eady’s judgment also crucially reminded the press that, despite CTB’s identity being all over Twitter, there was still a “reasonable expectation of privacy” which could be protected in this case and that the majority of privacy cases involve “blackmail” in some form or another.

This gave Media Lawyers more than enough grist for their mill, and the Twitterati continued to openly comment upon the wisdom, or otherwise, of CTB’s action. Debate raged over whether or not @superinjunction himself or other Tweeters would be drawn into the case as part of a claim for contempt and many quite rightly pointed out that he could be anyone – hiding behind a cloak of anonymity using proxy servers based outside the UK to disguise his anonymity. Injunctions granted in the UK can’t after all, be easily enforced on foreign defendants whose assets aren’t based here.

And then, in the wake of Lord Neuberger’s report on the state of the Superinjunction Nation, the unthinkable happened. CTB looked to have sued Twitter itself. Legal Commentators were quick to point out that this seemed futile, especially given that as a platform rather than the originator of the allegedly unlawful content Twitter may be able to escape liability as a “mere conduit” under the provisions of the Electronic Commerce Regulations 2002. The regulations are extremely important to the social media world as they allow “information society services” to avoid liability if, when notified of the content’s presence, they remove it immediately. Twitter had not done so – CTB’s name was still trending in the UK and many pointed out that given the sheer volume of updates being posted it would be virtually impossible to remove them all. Twitter is known for a commitment to free speech and a will not to “remove Tweets on the basis of their content”. Many wondered if the US giant would eventually even be able to be found liable in a UK Court, given its lack of jurisdiction over businesses based in the US, although the site does claim to “remove illegal tweets and spam”.

Within an hour or so, it became very clear that Twitter weren’t actually the real targets. They were not the Defendants to a claim in damages, but the respondents to an application for a “Norwich Pharmacal” or “Motley Fool” Order, which would force them to reveal the details of the users who had been tweeting the true identity of CTB.

Getting a “Motley Fool” order is not straightforward. They are only granted when needed to identify a wrongdoer (i.e the eventual defendant to be sued when their details are handed over), and the extent of the wrongdoing in dispute, to allow a claimant to plead their case against an unknown defendant, and when the respondent, i.e. Twitter, is likely to have relevant information and has been involved in the activity complained of.

The claim which a Motley Fool order is designed to assist will need to be better than trivial – recent applications have been refused if the Claimant is intending to sue over “pub gossip”. This case, however, is way more serious. There’s no reason to believe that if Twitter were based in the UK, that the Order wouldn’t achieve everything it intended to.

But that’s the point. Twitter isn’t. It’s based in San Francisco, way beyond the reach of the UK Court. UK Judgments are notoriously difficult to enforce in a US Court, and there’s no reason to think that this case would be any different. Their servers are based outside the UK, and so are all of their assets. Californian Law does allow for a similar “John Doe” application to force disclosure of these kinds of details, and it’s hard to see how taking action in the USA wouldn’t have been far more effective in this case, especially given that US websites such as Wired are already reporting CTB’s real name in the context of what this claim could mean to Social Media.

In any event, Twitter has the US Speech Act to fall back on, which protects American businesses from any court order that does not comply with US free speech law, such as the First Amendment to the Constitution.

If Twitter does give in, and it may yet do, then they may set a very dangerous precedent by agreeing that the UK Courts do have the jurisdiction to make the Order applied for. Their users would be to say the least concerned and their position at the centre of the Social Media Revolution would be under threat, as many may choose not to take the risk of telling the World what they really think in 140 characters or less. Their reaction will be fascinating to watch and hugely significant.

But, if CTB does get his way, whom is he the going to sue? Presumably @superinjunction, suspected to be a Tabloid Journalist in disguise, is as the top of his hitlist, but he won’t be able to afford to go after every tweeter who has revealed his identity. He may sue for breach of privacy or simply for contempt, but to be liable for contempt of a Court order a defendant has to be aware of its terms – hard to demonstrate when the order itself is secret.

Already, Tweeters have been reacting similarly to CTB’s latest move as they did in the Paul Chambers “Twitter Joke Trial”. Chambers was convicted of sending a message of a menacing character over a public electronic communications network under the Telecommunications Act 2003 after threatening to blow up an Airport. Thousands of Tweeters repeated the threat, along with the hashtag “I am Spartacus”. A bad joke containing the punchline “Imogen that” is already trending, and users show no sign of being threatened by a potential lawsuit. Or, as some are describing it, a “flawsuit”. (©, although copyright can’t subsist in relation to a single word, @DavidAllenGreen)

Some users of Twitter will almost certainly be sued for revealing CTB’s identity. Their identity may be clear, but whether they can pay CTB’s damages or costs if they lose is definitely not. Similarly, the question of whether or not this is now really a matter of “public interest” is likely to be fought in the full glare of a now-global media spotlight.

Everyone makes mistakes, and no-one likes it when their details come back to haunt us, but it’s hard to see how this can prove anything else but a continuing PR nightmare for CTB. Whilst his case may be a strong one against Thomas and the theory behind his action against Twitter may be partly justifiable, all this case has done is further expose him to contempt (pun intended), ridicule, and further scrutiny.

As I’ve said for some time, it was only a matter of “when” before a case like this case before the Court and tested the limits of how and when Social Media users and the Platforms they use would be held truly rather than theoretically responsible for unlawful commentary, but this exercise in legal theory, paid for by CTB seems very much like a real “own goal”. Certainly, online behaviour is just as punishable as it is offline, but will that punishment really be brought to bear against hundreds of thousands of Tweeters?

As Mosley made himself an unlikely poster boy for the development of privacy law, CTB may want to consider his fate. Last week saw Mosely’s attempt to force Newspapers to disclose details of exposes to their subjects before publication at the European Court of Human Rights fail. No-one expected him to win, and few expect CTB to win against Twitter even if he goes on to successfully sue some of its users, the genie is out of the bottle and in the space of a week he has gone from being the victim of alleged (although unproven) extortion to what some describe as the “King Canute” of Social Media.

The horse has well and truly bolted and CTB may find himself in legal textbooks for all the wrong reasons, but for now what we can say is that the rules of engagement have changed. The Courts are starting to get to grips with them, CTB may get a grip of some Tweeters, but even before then he should perhaps get a grip of his own ego, his escalating legal bill and his predilection towards infidelity.

Privacy should be protected. It is a Human Right. However, it will not be protected at all costs. The cost to CTB may be his reputation.

Mosley Harmless – Max Mosley loses bid to force Press to notify Public Figures before running a story

Max Mosley, the former President of the FIA, has lost his bid to impose greater restrictions on the media when dealing with stories that involve their private lives.

Mosley won a very public privacy claim against the News Of the World in 2008 after it posted footage from and reported on what was described as a “sado-masochistic orgy” with “Nazi” overtones.

The Court awarded Mosley £60,000, but this was not enough – he made an application to the European Court of Human Rights against the British Government to argue that unless the Press were obliged to make the subject of a story aware that it may contain sensitive details of their private life, the damage would already be done in most cases. The European Court disagreed with Mosley, with the media breathing a huge sigh of relief as a result.

It’s been a busy week for media lawyers after the controversy involving details of the parties involved in various Superinjunctions being allegedly revealed on Twitter. Mosley’s case deals with more fundamental issues over which the privacy cases involving the grant of a superinjunction are fought and although the result doesn’t actually change the status quo, it is a very useful guide as to how far the Courts are willing to prioritise individual privacy over freedom of expression.

Much of the developing UK privacy law has been framed around Mosley’s 2008 case against the News Of the World over the reporting of Mosley’s involvement in what was described as a “Nazi orgy”. This was one of the main elements of the News Of The World’s defence to Mosley’s claim that his right to privacy and the confidential nature of his behavior had been infringed by the way in which the case was reported, along with the posting of actual footage from the event on the News Of The World’s Website. Mosley went on to win £60,000 in damages from the newspaper.

The Judge found no evidence of any Nazi-inspired activity in the footage shown to the Court and built on the landmark confidentiality case involving Catherine Zeta-Jones and Michael Douglas’ 2006 claim for damages against Hello Magazine. This case confirmed that “in order to find the rules of English law on breach of confidence we now have to look at…..articles 8 and 10”.

Articles 8 and 10 refer to the European Convention on Human Rights; respectively the right to respect for private and family life and the competing right to freedom of expression. In Mosley’s case, the Court looked at the competing rights of Mosley to keep the details of his sex life private and the News Of The World’s right to report on it.

The Court asks two questions in privacy cases – is the information in question protected by the right to privacy granted by Article 8 (i.e. does it give rise to a “reasonable expectation of privacy”) and if so, does it outweigh the freedom of expression granted to the Press by Article 10?

The Court then performs a “balancing act” between these rights and takes into account whether or not there is any public interest in exposing the activity in question. That balancing act will not involve questions of taste or decency, just which right should prevail. In Mosley’s case, the Judge found that if the conduct in question did not involve any illegal activity, then the sex lives of public figures are essentially no-one else’s business, that the public interest in a story would not justify publishing every “salacious detail” and that even public figures are entitled to a personal life.

No privacy case following Mosley has beaten his record damages award, and the judgment led to a raft of similar cases involving the likes of Sienna Miller and JK Rowling – keeping the lives of the rich and famous quiet has become a cottage industry. Mosley himself became an unlikely mascot for the movement and made it clear that he intended to pursue his case all the way to the steps of the European Court.

Mosley’s most recent claim was against the UK government rather than any rehash of his arguments against the News of the World – he argued that his Article 8 right to privacy and his Article 13 right to an “effective domestic remedy” had been violated by the UK government through a failure to impose a legal duty on the News Of The World to give him advance notification that the 2008 story was about to be published – this would have allowed him to apply for an interim injunction to stop it hitting the front page, which he felt was the only way that his life would not have been, as he put it “ruined”.

The Court disagreed, finding that current UK privacy law granted enough remedies to protect Mosley’s Article 8 right to privacy – there is a clear obligation to respect personal privacy and if breached a claimant can fall back on a number of options including a complaint to the Press Complaints Commission, a claim for damages, an interim injunction or even the dreaded “Superinjunction”, which prevents any mention of an injunction being in place. The damages awarded to Mosley in 2008 were, in the Court’s opinion, high enough to compensate him and the UK enjoyed a wide “margin of appreciation over how it chose to protect the Article 8 right to privacy.

Very few Media Lawyers, if any, expected Mosley to win and the ruling is nothing short of a triumph of common sense. If the Press were forced to effectively run a story by any public figure involved in it, then this would produce not so much as a chilling effect as an ice age in investigative journalism – new laws would need to be drawn up and potential criminal offences introduced for failing to comply. Notably, no other legal system in the world forces the press to do so.

The European Court’s Judgment does not let the News Of The World off the hook, and will not force any major change in existing privacy law, but it does show that the individual right to privacy will not always prevail over freedom of expression. The “Phone Hacking” cases against News International currently making their way through the High Court may lead to far higher awards in damages than in Mosley, mainly because the invasion of privacy is far more fundamental and involves criminal offences under the Regulation of Investigatory Powers Act, but for now at least the kiss and tell story is very much alive and well no matter how much Max Mosley may try to bury it once and for all.

Mosley may well make one last attempt to take his case to the Grand Chamber of the European Court of Human Rights, but realistically the only real winners in his case will be his lawyers.

Tweet And Be Damned

In the latest twist to the ongoing and very public row over whether or not celebrities should be able to obtain so-called “Superinjunctions” to restrain the press from reporting on details of their private lives, a Twitter User has apparently posted details of the parties involved in six superinjunctions over the course of the weekend.

The Twitter Account “@injunctionsuper” was set up in the name of “Billy Jones” on 8 May and has only posted six updates, but is already being followed by nearly 23,000 people. Some of the celebrities named, including socialite Jemima Khan, who is alleged to have obtained a superinjunction to stop details of her affair with a well-known TV presenter going public, have already gone on record to deny having obtained the Court Order, but this doesn’t appear to be doing anything to stop the online rumour mill.

Superinjunctions have never been far away from the news over the last few weeks even though they have had to fight for headlines with coverage of the Royal Wedding and the death of Osama Bin Laden.

Andrew Marr was the most recent public figure to admit that he had obtained a “Superinjunction” in 2008 to protect his family’s privacy by suppressing reports of his affair with a fellow journalist, and Twitter has been flooded with rumours after glamour model and Celebrity Big Brother winner Imogen Thomas won the right in the High Court to protect the anonymity of a premier league footballer with whom she was alleged to have had an affair. Many members of the Twitterati already have a very good idea of who he is, and @injunctionsuper claims to have removed all doubt over the course of the past 24 hours.

These cases, along with David Cameron’s recent public “unease” over Judges creating “a sort of privacy law whereas what ought to happen in a parliamentary democracy is Parliament, which you elect and put there, should decide how much protection do we want for individuals and how much freedom of the press and the rest of it” and the recent decision by Mr. Justice Eady in OPQ v BJM that saw him issue a “Contra Mundum” injunction enforceable worldwide and in perpetuity to prevent the publication of ‘intimate photographs’ of a married public figure after a woman tried to sell them for a ‘large sum of money’ have reignited debate over how far the UK’s developing privacy law should be able to restrict freedom of the press.

There are, as always, two sides to this argument – on the one hand, celebrities are increasingly turning to the law of privacy to suppress negative coverage, severely limiting the freedom of the press and depriving the public of information about which they may feel they have a ‘right to know.’

On the other, the press are also increasingly running stories which have nothing to do with ‘the public interest’ to fill column inches in an environment where the Press Complaints Commission is seen as largely powerless to take any real action to compensate a victim once a controversial story has been run. The recent “phone hacking” scandal and public apology from News International for their unlawful surveillance of several high-profile figures has shown how far the press may be willing to go to obtain a scoop.

Privacy law reached its high watermark (so far) in the now-infamous battle between Max Mosley and the News of the World in 2008 over allegations of Mosley’s involvement in a ‘Nazi orgy’ and the leaking of a video of the event online. Mosley was successful, winning damages of around £60,000 and setting out the basic ‘road map’ to the new approach to privacy law following the coming into force of the Human Rights Act in 2000.

The Human Rights Act brought the European Convention on Human Rights into English law and requires the court to take its provisions into account wherever possible. In privacy cases, the court must consider whether or not there was a ‘reasonable expectation of privacy’ in the information in question which can be protected by the Claimant’s Article 8 right to respect for private and family life (dependent in many cases upon whether or not the Claimant courted publicity) and then perform a ‘balancing act’ with the Press’ Article 10 right to freedom of expression.

The most important consideration in this balancing act is usually whether or not the information in question can be justifiably disclosed in the public interest. This does not cover information which is simply ‘interesting to the public’ and in Mosley’s case Justice Eady made the point that a publication which reveals sensitive information for the sake of ‘titillation’ or satisfying public curiosity can never be justified. In his opinion, ‘the sex life of any individual is essentially their own business.’

Even when freedom of expression sees the balancing act come down in the press’ favour, for example to expose illegal activity, to avoid the public being misled or to contribute to a genuine public debate, his will not allow the publication of ‘every gory detail’ and in particular, stories involving the sex lives of those in the public eye will normally be much harder to justify.

Nevertheless, the start of 2010 saw then-England captain John Terry at the centre of the privacy law debate after obtaining a ‘superinjunction’ banning any reporting of his alleged extramarital affair with lingerie model Vanessa Perroncel as well as any reference to the fact that the injunction itself even existed. The decision in Terry’s case came amidst increasing criticism of what was described as a ‘back door privacy law,’ and the ‘superinjunction’ was overturned after Mr. Justice Tugendhat found it to be unnecessary – the information which it covered was already relatively widely known within the sport, and in his opinion, Terry applied for the injunction more to protect his commercial interests and sponsorship deals rather than his private life.

If a claimant becomes aware of impending negative press attention and has a very strong case in either defamation or privacy against the publisher for which an award of damages would never truly compensate them if the details became public, then an, injunction may well be the only realistic option. They are not easy to obtain, ‘superinjunctions’ even less so, and are only granted in cases where allowing the publication to go ahead will cause more harm to the claimant than restraining it would do to the newspaper.

However, an injunction or ‘superinjunction’ may never truly kill a story. In December 2009, Tiger Woods obtained an injunction against the reporting of further details of his private life being disclosed in the British press in the wake of his very public fall from grace. However, much of the information and accusations in question were already available on a number of US websites accessible from the UK, leaving many commentators wondering what the point was.

Similar points have been made in relation to the OPQ Case – an injunction was made which is enforceable against the entire world and in perpetuity. This kind of order is at the absolute extremity of the Court’s jurisdiction and was granted on the basis that publication of the information protected by the order could have a very serious effect on the mental health of the Claimant and his family.

In the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as commodities broker Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months. It was for this reason that the BBC’s attempt to keep the identity of the Stig secret through an injunction failed – his real name was being widely referred to on the internet and in accounts filed at Companies House.

However, what 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.

“Billy Jones” may think that he is able to hide behind a false user name, but if he has posted any information on genuine superinjunctions then there is nothing to stop anyone who has obtained one applying for an order from the Court to reveal their identity, pursuing them for a breach of privacy and then applying to the Court to have them committed for contempt after breaching the terms of the Order itself.

In practical terms, the 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. The Court, however, 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.

Twitter as a platform is shielded from proceedings being taken against them if they immediately remove tweets which contain unlawful material when notified and take no action to vet the content of any such posts – this lack of editorial control is not only part of their business model (they could not feasibly check every tweet to ensure that it doesn’t cause a problem) but key to their defence as a “mere conduit” which makes material available over the internet but has no control over the content itself under the Electronic Commerce Regulations 2002.

The Courts will now have no choice but to really get to grips with the practical issues which social media commentary creates in ongoing proceedings, especially those which are intended to remain secret. The last few years have seen criminal cases involving obscenity in blogs, harassment and cyber-bullying through Facebook and the relatively new offence of misuse of a public electronic communications network – the notorious “Twitter Joke Trial”.

Each of these cases is a salutary lesson that although social network users can hide their presence through false profiles and may not be worth pursuing if they simply wouldn’t be able to pay damages or costs in a civil claim, they are not immune from sanction and it’s probably only a matter of time before the Twitterati are held accountable for the content which they post.

As much as @Injunctionsuper’s tweets may be interesting to the public rather than in the public interest, they may soon become very interesting to the Courts.