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….