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.