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.