“Not Spycatcher – Footballerfinder” – Amber Melville-Brown

24 05 2011

Could the argument over privacy get any more heated?   It started by pitting individuals against the media, the one fighting to protect their article 8 rights to respect for their private lives, the other arguing in favour of their article 10 rights to free speech. And the row has not stopped since the two rights were incorporated into UK law by the implementation of the Human Rights Act 1998.

Of late, the press has been preaching from its soap box about the evils of so-called super-injunctions, giving the impression that they are scattered like confetti from the judicial pulpit. The Master of the Rolls however, has had a good long look at what is actually going on in practice and behind the hysteria, hyperbole and headlines (which is still ongoing, notwithstanding his findings – well, why let the truth get in the way of a good story?) the evil is not so great and widespread as the number of column inches might suggest.

But it is a devil in which the media fervently believes, and with controversy over the make up of Lord Neuberger’s committee – ‘what, no journalists?’ – it is unlikely to change its view. Such a matter of national debate is that of privacy that the press’ plaintive cries have been picked up by politicians, including the Prime Minister; super injunctions have been discussed in the House under parliamentary privilege; and the citizen himself has been causing havoc by disregarding court orders and blogging the identity – some correctly, some not – of those with the ‘protection’ of a privacy injunction.

But this is not just a domestic debate. The row now also extends far beyond our shores, with the California-based Twitter subject to a Norwich Pharmacal order requiring it to deliver up details of one of its anonymous tweeters.  What in any normal circumstances would be a relatively standard application, requiring an ostensibly innocent party to unmask a wrong doer, hiding behind the cloak of anonymity, is receiving unprecedented publicity.

Our American cousins already consider our media laws to be anti-constitutional and a libel terrorism bill enacted to prevent the enforcement of our defamation judgements across the Pond. What will they make of a request to hand over details of a website user so that he or she can be admonished over the breach of legal principles that no doubt they consider to be abhorrent? How they will phrase their response is one thing; what they will say, will probably come as no surprise.

An entirely separate Tweeter from the anonymous party being sought from Twitter has also tweeted about another footballer and another extra marital affair the subject of another injunction. And he is potentially set for admonishment too – this time from the Attorney General. Dominic Grieve has been asked by the footballer’s lawyers to consider whether contempt of court proceedings should be brought against him.

Some will think that any consideration of contempt proceedings is disproportionate – the activities of a blogger are, they will argue, only the very thin end of a very thick wedge, with little implications for the rule of law generally. But if citizens are allowed to decide for themselves which of our laws they will and will not obey, and which court imposed orders they will ignore or breach, then does that not make a mockery out of the orders that the judges have made, as we understand it, after a careful weighing of the respective rights at play? The courts cannot sit idly by and watch their orders being deliberately disobeyed. To do so would make a proverbial ass out of the law already under much critical scrutiny.

But is this a path that the Attorney General will be prepared to go down? Newspaper reporters may have been among those boarding planes to Australia decades ago to pick up their copies of Spycatcher subject to an injunction in the UK. But if they weren’t successfully prosecuted for contempt of court is it right that a reporter blogging from his bedroom – similarly ripping a hole through an injunction in place – might be?

The difference between the reporter in the Spycatcher days and the journalist today is more than just the likely size of the his expenses claim. Now Pandora’s box has been opened unleashing modern tools of communication on us. New technology makes new territory out of a formerly well known and well trod path.

Contempt of court is a serious business and carries with it a potential prison sentence for those who continue to disrespect the law. It is likely that a swift, sincere and credible apology from a blogger in the dock will keep the prospect of prison at bay, while the prospect of being hauled before the court to apologise may give others pause for thought when they are considering breaching a court injunction. But then again, it might not. And there are hundreds, thousands, millions of potential infringers out there not subject to the jurisdiction of our courts or not inclined to worry about them even if they are.

It is entirely understandable that the traditional print media may feel a little hard done by, much like an older sibling who steadfastly obeys the rules but watches his younger brother – in this case the Internet – disregarding them with impunity. But newspapers and broadcasters would take no comfort from seeing the Internet brought to task, as they themselves would be, for contempt of court. Rather, what they will be hoping for is that the Attorney General may feel that a prosecution is pointless and that he too, would be standing as King Canute before the tide of injunction breaches, even with the possibility of prison at his fingertips.

If that were the case, it would surely give the traditional media more lead in their pencil in their public domain arguments that once the privacy bubble is burst on the Internet, then the game is up. But that would be disastrous for privacy claimants whose injunctions could be out of date almost as soon as they were made. And for the courts also, who would be pilloried for their pointlessness.

The row over privacy and free speech, about the way to police the Internet, as to the appropriateness of severe sanctions will continue to rage. That issues of significant public interest should be raised by the media in carrying out its vital role as watchdog and bloodhound of society, is a given. And that individuals should be afforded respect to their private lives should equally be understood. But the peddling of the private peccadilloes of sportsmen is not in the same league as a justifiable public interest story and we should not allow the loud voices shouting from the touchlines at the seamier side of the media to drown the quiet voice inside us all that tells us otherwise.

It is a shame then perhaps, that the important landmark decisions which will have a longstanding impact on our law should be played out not over serious considerations of public interest but over which footballer slept with whom. Really a case of ‘Footballerfinder’ not Spycatcher.

Amber Melville-Brown is a media law specialist counsel at London based law firm Withers


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