It may now be safe to say that the super-injunction media-frenzy has largely passed. But fresh from the ruins of the CTB injunction, the blame-game is well underway. Who is responsible for making a mockery of the rule of law and rendering privacy rights ridiculous? Who is responsible for seeking to extend privacy rights past their tipping point? Deciding who the culprits are depends very much upon your view-point and I am sure that there are those not in my list that you would wish to include. Lawful contributions are welcome.
Below is a line-up of some of the usual suspects and the charges being levelled at them:
1. CTB (or the footballers)
Although they are rarely credited for their contribution to public life and academic debate, there can be no doubting the importance of premiere league footballers in the development of privacy jurisprudence. Poor Gary Flitcroft was something of a standard bearer when he sought his injunction in A v B almost a decade ago. His eventual nemesis was Lord Woolf who found that Gary’s night-time activities fell at the wrong end of his scale of relationships that warranted protection. But if Flitcroft was feeling a bit sorry for himself then, with John Terry being another high-profile fall-guy of a tough judgment, then they must thank their luck stars that they are not CTB. His application was repeatedly attacked and each attack failed to withstand legal scrutiny yet he ends up as the very personification of the press-gagging philandering footballer. That, and the recipient a large bill. It is quite a price for pay for falling foul of the Editors (moral) Code for those in the public eye.
2. The lawyers
So to everyone’s favourite villains; the lawyers. Whilst media lawyers are a self-important breed, even the vainest of us must have been wondering when the spotlight would pass onto something a trifle more important. The spotlight was firmly on Schillings and newspaper lawyers will have loved their clients at the Daily Mail, Guardian, Times and Independent for the poisonous articles that targeted Schillings’ representation of CTB. Hugh Tomlinson QC received rather kinder treatment in a Saturday Guardian profile. Carter-Ruck endured a similar attack to Schillings following their actions on behalf of Trafigura but one senses the opportunity to settle scores was being relished in particular with Schillings. If their move against Twitter yields results (as it appears that it may) then many will have to eat their words, or in any event attempt to delete them. Newspaper lawyers may be enjoying the schadenfreude but their performance has been far from impressing the court in either the CTB or the Goodwin case. The game continues, but the rules may be changing.
3. The politicians
Politicians are usually a good target for opprobrium. In this case it was the quirky Lib-Dem duo of Lord Stoneham and John Hemming that were the final sledge-hammers to the Goodwin and CTB injunctions respectively. In both cases it is questionable how much they knew of the facts of the case to see fit to decide that the injunctions should be lifted behind the shield of parliamentary privilege. Mr Justice Tugendhat, in his judgment on 23 May 2011 in Goodwin spends considerable time addressing “fundamental misunderstandings” not least that the original injunction prevented MNB, as he was then known, from being referred to as a “banker” (another potential villainous category for our list?). David Cameron too could be taken to task for his expressions of “unease” at the judiciary doing what has been obliged of them. But other than a rebuke from the speaker, some sharp words from Lord Judge and a few uncomfortable interviews they have escaped punishment. An interesting piece by Andrew Olins in the Times suggests that section 4 of the HRA (engaging Articles 8 and 17 of the Convention) may be used to declare the immunity granted to MPs by Article 9 of the Bill of Rights 1689 incompatible with the Convention.
4. The judges
Mr Justice Eady has already taken his unfair share of the blame for the development of privacy law. Hansard makes a mockery of the argument that judges created the law of privacy (please note, Prime Minister) and their judgments in the case of CTB or indeed of Goodwin are difficult to criticise on the facts as we know them. There will always be different views but the last 18 months have seen increasing efforts to be sure that these views can be heard. The most senior civil judge, the Master of the Rolls, has of course recently published his 100 page report containing an analysis and recommendations for safeguards for the way privacy injunctions are to be dealt-with. The report also contained a definition of super-injunctions and the headline that only two such orders had been granted within the last 18 months. You may have missed these points had you been following the coverage in our newspapers.
5. The tabloids
The tabloid editors must be thinking that all their Christmas’s have come early. The potential barriers to their lust for publishing private information of Strasbourg (in the Fourth Section judgment in Mosley) and the Master of the Rolls report were cleared comfortably and the sacrificial lamb of CTB presented himself with politicians and bloggers prepared to take up their campaign. The anti-injunction campaign is particularly convenient as a distraction from the on-going revelations in the phone-hacking saga; another boon for the editors. It may have been a slight dent in their triumphalism when “thugs” attacked the journalists camped outside CTB’s home with flour and eggs. Clearly not everyone sees the campaign for freedom of expression as clearly as the editors do. Any journalists facing contempt proceedings for breaching the injunctions on Twitter may dampen their editors’ spirits even further.
6. The PCC
Baroness Buscombe’s dramatic pronouncement on News Night that the PCC could have done for CTB what the Court failed to do brought sniggers from media lawyers, comfortable in the knowledge that the PCC had no more weapons at their disposal than the office cleaner. To add weight to her argument she claimed that the PCC dealt with over 600 privacy complaints last year. Perhaps the PCC could provide details of how many such complaints are pre-publication and how many succeed in stopping the story. The PCC’s position is not assisted by their failure to publically criticise blatant privacy intrusions (whether or not the subject of complaint). Pippa Middleton has been said to have complained to the PCC of the photographs printed in the News of the World of her changing her bikini top but what good is the complaint to her once the photo has been published? A Lib Dem blog chimes with the Guardian editor’s view that the CTB story is a product of an effectively unregulated newspaper industry.
7. The “other woman”
“Imogen calls in cops over death threats” The Sun told us on 26 May. More civil disobedience. There has been some confusion over Imogen Thomas’ part in the saga, assisted by the consummate spinning of her advisor Max Clifford. Her rights were certainly engaged by the developing story but Mr Justice Eady was clearly concerned (on the evidence of CTB alone) that rather than arguing for these rights in Court she took a more commercial decision in seeking a £100,000 payment (and, rather sweetly, a signed football shirt) for her silence. She later denied making such demands. Her position was further confused by stating that her rights had been disregarded by the Courts, however it appears that at no stage did she actively resist the injunction. In the absence of CTB, hers was the face of the story and Clifford exploited it to its maximum extent. The trivial issue of death threats aside, is she the clear winner from this tawdry tale?
The Independent commissioned a survey into views on privacy which they published this week. One product of that survey was that 54% of the participants agreed that there needs to be greater regulation of the internet and social media to protect people’s privacy (40% disagreed). The Master of the Rolls dismissed the threat of social media to court orders by suggesting that postings from individuals (anonymously or otherwise) on the internet had a lesser social value than newspaper articles. The authenticity of twitter revelations were exposed in the Clarkson/Khan and Gabby Logan injunctions that never were. Should lawyers therefore leave bloggers alone just as we would bar-room gossips or are we then guilty of sticking our heads in the sand as to the progress of social media as the dominant source of information? Twitter’s public statements suggest that they will not seek to resist a Court order compelling them to name their errant users however any attempts to put in place a system by which Twitter and other platforms have to oversee what is published will be resisted more fiercely.