2011 British privacy injunctions controversy
Encyclopedia
The British privacy injunctions controversy began in early 2011, when London-based tabloid newspapers published stories about anonymous celebrities that were intended to flout what are commonly (but not formally) known in English law
as super-injunctions
, where the claimant could not be named, and carefully omitting details that could not legally be published. In April and May 2011, users of non-UK hosted websites, including the social media
website Twitter
, began posting material connecting various British celebrities with injunctions relating to a variety of potentially scandalous activities. Details of the alleged activities by those who had taken out the gagging orders
were also published in the foreign press, as well as in Scotland
, where the injunctions had no legal force.
In England and Wales, as in many other places, an injunction
can be used as a gagging order, in which certain details of a legal case, including identities or actions, may not be published. These were originally created to protect people whose lives might be at risk if their details were made public, such as child offenders. However, with the passing of the Human Rights Act 1998
, which wrote the European Convention on Human Rights
into UK law, judges began to use a passage of the Act to extend the powers of these legal rights to cover the right to privacy. An injunction whose existence and details may not be published, in addition to the facts or allegations injuncted, became informally known as a "super-injunction".
The controversy has led to a number of wider issues being publicly examined including freedom of the press
, freedom of speech
, online censorship, the effect of European treaties
on the UK legal systems
and fundamental constitutional
issues regarding parliamentary privilege
and the relation between the judiciary
and parliament
.
newspaper reported that it had been prevented by a legal injunction applied for by London libel lawyers Carter Ruck from covering remarks made in Parliament. Other sources, including The Spectator
and the blogger Guido Fawkes
, then speculated that it related to previous reports the Guardian had printed regarding the oil company Trafigura
and their alleged waste dumping in the Ivory Coast.
The Guardian confirmed that Trafigura was the source of the gagging order, after the order was lifted the next day. The question that they were unable to report was from Labour MP Paul Farrelly
:
The case did a great deal to arouse public suspicion of these types of injunction, eventually leading to a debate in the House of Commons, where Bridget Prentice
, the Justice Minister, said that the government was concerned about the over-use of super-injunctions. She would consider whether further guidelines needed to be issued to the judiciary, and she stressed that the Parliamentary Papers Act 1840
, which allowed the proceedings of Parliament to be reported without interference, was still in force.
and an unnamed married actor; Imogen Thomas
, former Big Brother
contestant and Miss Wales winner and Ryan Giggs
, who was later named in the USA and on Twitter as the married footballer; and around thirty other injunctions which had been granted in the preceding year.
This was followed by many supportive editorials in other newspapers, decrying the injunctions limiting of free speech, and their instigating a 'privacy law' by judicial precedent. The heavy coverage of this matter led to British Prime Minister David Cameron
and culture secretary Jeremy Hunt expressing their own reservations about the manner in which the law was being enforced.
On 26 April 2011, following legal action by Private Eye
editor Ian Hislop
, an interview with BBC journalist and political correspondent Andrew Marr
was published in the Daily Mail, in which he revealed that a super-injunction he had taken out in 2008 had prevented the reporting of an extramarital affair he had had with a female journalist. As his job often involved pointing out the hypocrisies of the politicians he interviews, he was roundly criticised by many commentators for his behaviour, including Ian Hislop himself, stating, "As a leading BBC interviewer who is asking politicians about failures in judgment, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist." Andrew Marr also stated that he was both embarrassed and uneasy about his actions.
reported on further privacy injunctions, including ones forbidding publication of:
who had obtained an anonymised injunction in the case of CTB v News Group Newspapers
and the woman with whom he had an alleged affair, Imogen Thomas
, were posted on Twitter and reported by international press sources. The allegations were repeatedly reposted by many users, in a pattern similar to that in the legal defense of the Twitter Joke Trial
the year before, making it difficult to prosecute any one user. Nevertheless legal action was instigated by the footballer against Twitter in an attempt to obtain information on which users were involved. Paradoxically the Streisand effect
, however, then led to the player's name and the allegations being rebroadcast many more times across the internet.
Some of the allegations have been strongly denied by those named. As these have been widely reported in the media, which would then break any injunction, it has been speculated that these details posted on Twitter were incorrect. Jemima Khan
flatly denied the rumours involving her, tweeting, "Rumour that I have a super injunction preventing publication of "intimate" photos of me and Jeremy Clarkson
. NOT TRUE!" and, "I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!", finally labelling the rumours as "Vile hate tweets.". Khan took no legal action for libel against either the poster or those who publicised the story. Final Score
presenter Gabby Logan
also spoke out against the allegation she had an affair with former England and Newcastle United footballer, and fellow sports presenter Alan Shearer
, stating that the controversy, "Is muddying the waters for people who have done nothing wrong."
published on its front page a photo of Ryan Giggs
, the footballer alleged to have had an extra-marital affair with Imogen Thomas
. The picture showed Giggs with his eyes blanked out with the caption "CENSORED". The newspaper editor, Richard Walker, stated that the injunction applied only in England and Wales, and had no legal force in Scotland.
, a journalist for the Times
newspaper, attracted controversy by posting jokes on his Twitter web feed about Gareth Barry
and privacy injunctions. They were later deleted, but had been archived. It was reported on 22 May 2011 that a journalist might be jailed over Twitter comments about injunctions, as the case had been referred to the Attorney General for England and Wales
, Dominic Grieve
. Paul Staines
implied in his Guido Fawkes blog that Giles Coren was the journalist involved, while on 23 May 2011, Liberal Democrat
Member of Parliament John Hemming
spoke in the House of Commons and used parliamentary privilege
to identify Coren. Coren acknowledged on Twitter that he could face jail for alleged contempt of court
.
with X, a colleague. Some issues arising from the affair led to X losing her job.
ETK won an injunction
to prevent News Group Newspapers Ltd from disclosing his identity, to protect his children. The woman, X, also agreed to the injunction being sought.
On 5 June 2011, Irish tabloid newspaper the Sunday World
published a story on its front page naming David Threlfall
and Pauline McLynn
as involved in the injunction. Other Irish media sources have published the names of the people involved in the injunction.
, who had some time before been the subject of a story about his actions, took the News of the World
to the European Court of Human Rights
, in an attempt to prevent stories about people's private lives being published without first warning those concerned. Knowing that a story was to be published, the subject could apply for an injunction prohibiting publication, effectively creating a privacy law. On 10 May 2011 Mosley lost the case, on the grounds that Article 8 of the European Convention on Human Rights
did not require a pre-notification and that such a measure "might operate as a form of censorship prior to publication
" due to the severity of the civil and criminal penalties and control thereof, violating its own Article 10, "Freedom of Expression".
voluntarily lifted a privacy injunction known as AMM v HXW, which had prevented the UK media from reporting claims by his former wife that they had an affair after he remarried. Clarkson commented: "Injunctions don’t work. You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter
and the internet. It’s pointless."
invoked parliamentary privilege
(where politicians under most circumstances cannot have civil or criminal proceedings brought against them for comments made within the scope of Parliamentary business) to reveal another super-injunction. The discussion involved an anonymised privacy injunction, concerning former Royal Bank of Scotland
head Sir Fred Goodwin
.
On 19 May 2011, the rule of privilege was invoked again, in the House of Lords, Lord Stoneham
stated;
On 23 May 2011, shortly following a ruling by the High Court to retain the injunction, John Hemming
once again utilised parliamentary privilege to name the footballer who sought the injunction in a parliamentary question. The BBC initially declined to report the question or name given by Hemming, but later updated its website with the news that the player was Ryan Giggs
. Sky News
immediately named the player as Ryan Giggs after Hemming's speech.
Hemming was called to order mid-question by the speaker John Bercow
who reminded the MP that 'occasions such as this are for raising the issues and principles involved, not seeking to flout for whatever purpose' – however, the speaker permitted the MP to complete the question and took no disciplinary action against him.
, Lord Neuberger reported back on 19 May 2011 with a number of recommendations and observations:
The report made no mention of the internet or new media and how the courts would propose to enforce injunctions against non-UK publishers and non-UK hosted websites. However, commenting on the committee report, the Lord Chief Justice, Lord Judge, stated that ways would be found "similar to those used against child pornography" to prevent the "misuse of modern technology" raising concerns on online censorship. Lord Judge has also commented on related technological challenges to the legal system such as use of Twitter in court and use of search engines by juries.
Lord Judge also commented on the wisdom of MPs and Lords using parliamentary privilege to subvert super-injunctions, asking "whether it's a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created". This led to an angry response from a number of MPs accusing the judiciary of "attempting to gag parliament".
was reported in April 2011 to be "uneasy" with the current use of super-injunctions. The Culture secretary Jeremy Hunt has stated that the Government does not intend to introduce a privacy law and that it would instead look towards clearer guidelines for judges ruling on injunctions. This was reaffirmed by David Cameron on 10 May 2011 when he blamed lack of parliamentary guidance forcing judges to rely on strict European law in their judgements. A spokesman for the Prime Minister welcomed the Neuberger report, stating that "We think this is a very useful report and it is something we will be considering very carefully." On 23 May 2011, speaking on ITV's Daybreak
the Prime Minister stated that the law should be reviewed to "catch up with how people consume media today" and that the situation was "unsustainable". Ed Milliband, the leader of the opposition, commented that the law was "not working" and a review would be required.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
as super-injunctions
Super-injunctions in English law
Super-injunctions in English law refer to a type of injunction in English tort law that prevent publication of the thing that is in issue and also prevents the reporting of the fact that the injunction exists at all. The term was coined by a Guardian journalist covering the Trafigula controversy...
, where the claimant could not be named, and carefully omitting details that could not legally be published. In April and May 2011, users of non-UK hosted websites, including the social media
Social media
The term Social Media refers to the use of web-based and mobile technologies to turn communication into an interactive dialogue. Andreas Kaplan and Michael Haenlein define social media as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0,...
website Twitter
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
, began posting material connecting various British celebrities with injunctions relating to a variety of potentially scandalous activities. Details of the alleged activities by those who had taken out the gagging orders
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
were also published in the foreign press, as well as in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, where the injunctions had no legal force.
In England and Wales, as in many other places, an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
can be used as a gagging order, in which certain details of a legal case, including identities or actions, may not be published. These were originally created to protect people whose lives might be at risk if their details were made public, such as child offenders. However, with the passing of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, which wrote the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
into UK law, judges began to use a passage of the Act to extend the powers of these legal rights to cover the right to privacy. An injunction whose existence and details may not be published, in addition to the facts or allegations injuncted, became informally known as a "super-injunction".
The controversy has led to a number of wider issues being publicly examined including freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
, freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, online censorship, the effect of European treaties
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
on the UK legal systems
Law of the United Kingdom
The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...
and fundamental constitutional
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
issues regarding parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
and the relation between the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
and parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
.
The Guardian and Trafigura super-injunction
The first major publicised event involving the use of injunctions to prevent reporting in the UK was in October 2009, when The GuardianThe Guardian
The Guardian, formerly known as The Manchester Guardian , is a British national daily newspaper in the Berliner format...
newspaper reported that it had been prevented by a legal injunction applied for by London libel lawyers Carter Ruck from covering remarks made in Parliament. Other sources, including The Spectator
The Spectator
The Spectator is a weekly British magazine first published on 6 July 1828. It is currently owned by David and Frederick Barclay, who also owns The Daily Telegraph. Its principal subject areas are politics and culture...
and the blogger Guido Fawkes
Paul Staines
Paul Staines is an English-born Irish right-wing political blogger. Writer of the pseudonymous "Guido Fawkes' blog of parliamentary plots, rumours & conspiracy", which had as of February 2009, 118,000 visitors per month, his political blog has been described as "one of Britain's leading political...
, then speculated that it related to previous reports the Guardian had printed regarding the oil company Trafigura
Trafigura
Trafigura is an Amsterdam-based multinational company founded in 1993 trading in base metals and energy, including oil. the company had equity of more than $2 billion and a turnover of $73 billion that generated $440 million of profit....
and their alleged waste dumping in the Ivory Coast.
The Guardian confirmed that Trafigura was the source of the gagging order, after the order was lifted the next day. The question that they were unable to report was from Labour MP Paul Farrelly
Paul Farrelly
Christopher Paul Farrelly is a British Labour Party politician and journalist, who has been the Member of Parliament for Newcastle-under-Lyme since 2001.-Early life:...
:
The case did a great deal to arouse public suspicion of these types of injunction, eventually leading to a debate in the House of Commons, where Bridget Prentice
Bridget Prentice
Bridget Theresa Prentice is a British Labour Party politician who was the Member of Parliament for Lewisham East from 1992 to 2010, She was formerly married to fellow Labour MP Gordon Prentice, whom she married on 20 December 1975 and divorcing in 2000.- Background :Prentice was born in Glasgow,...
, the Justice Minister, said that the government was concerned about the over-use of super-injunctions. She would consider whether further guidelines needed to be issued to the judiciary, and she stressed that the Parliamentary Papers Act 1840
Parliamentary Papers Act 1840
The Parliamentary Papers Act 1840 is an Act of the Parliament of the United Kingdom. The Act was passed in response to the case of Stockdale v...
, which allowed the proceedings of Parliament to be reported without interference, was still in force.
The Sun and celebrity injunctions
In April 2011, British daily newspaper The Sun started to publish stories about the alleged sexual behaviour of various celebrities, omitting details which it was barred from reporting, while the injunctions were in effect. The stories variously included Helen Wood, the prostitute who had previously attained notoriety for allegedly sleeping with Premiership footballer Wayne RooneyWayne Rooney
Wayne Mark Rooney is an English footballer who plays as a striker for Premier League club Manchester United and the England national team...
and an unnamed married actor; Imogen Thomas
Imogen Thomas
Imogen Mary Thomas is a Welsh glamour model, beauty queen and television personality. She rose to fame in 2003, after winning Miss Wales, and achieved further note in 2006, when she lasted three months on the seventh series of reality TV series Big Brother.-Early life:Imogen was born to Charles...
, former Big Brother
Big Brother (UK)
Big Brother UK is the British version of the Dutch Big Brother television format, which takes its name from the character in George Orwell's 1948 novel Nineteen Eighty-Four...
contestant and Miss Wales winner and Ryan Giggs
Ryan Giggs
Ryan Joseph Giggs OBE is a Welsh professional footballer who plays for Manchester United. Giggs made his first appearance for the club during the 1990–91 season and has been a regular player since the 1991–92 season...
, who was later named in the USA and on Twitter as the married footballer; and around thirty other injunctions which had been granted in the preceding year.
This was followed by many supportive editorials in other newspapers, decrying the injunctions limiting of free speech, and their instigating a 'privacy law' by judicial precedent. The heavy coverage of this matter led to British Prime Minister David Cameron
David Cameron
David William Donald Cameron is the current Prime Minister of the United Kingdom, First Lord of the Treasury, Minister for the Civil Service and Leader of the Conservative Party. Cameron represents Witney as its Member of Parliament ....
and culture secretary Jeremy Hunt expressing their own reservations about the manner in which the law was being enforced.
On 26 April 2011, following legal action by Private Eye
Private Eye
Private Eye is a fortnightly British satirical and current affairs magazine, edited by Ian Hislop.Since its first publication in 1961, Private Eye has been a prominent critic and lampooner of public figures and entities that it deemed guilty of any of the sins of incompetence, inefficiency,...
editor Ian Hislop
Ian Hislop
Ian David Hislop is a British journalist, satirist, comedian, writer, broadcaster and editor of the satirical magazine Private Eye...
, an interview with BBC journalist and political correspondent Andrew Marr
Andrew Marr
Andrew William Stevenson Marr is a Scottish journalist and political commentator. He edited The Independent for two years until May 1998, and was political editor of BBC News from 2000 until 2005....
was published in the Daily Mail, in which he revealed that a super-injunction he had taken out in 2008 had prevented the reporting of an extramarital affair he had had with a female journalist. As his job often involved pointing out the hypocrisies of the politicians he interviews, he was roundly criticised by many commentators for his behaviour, including Ian Hislop himself, stating, "As a leading BBC interviewer who is asking politicians about failures in judgment, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist." Andrew Marr also stated that he was both embarrassed and uneasy about his actions.
Injunctions reported by Private Eye
In its issue of May 5 2011, Private EyePrivate Eye
Private Eye is a fortnightly British satirical and current affairs magazine, edited by Ian Hislop.Since its first publication in 1961, Private Eye has been a prominent critic and lampooner of public figures and entities that it deemed guilty of any of the sins of incompetence, inefficiency,...
reported on further privacy injunctions, including ones forbidding publication of:
- '[t]he name of the entertainment company which sacked a female employee after an executive ended an extramarital affair with her and told bosses that “he would prefer in an ideal world not to have to see her at all and that one or the other should leave'.
- 'how an author of bestselling books and newspaper columns drawing on his own personal life has blocked his ex-wife from writing a book of her own or talking to any journalists about her time with him'
- '“Private information” that MoD adviser Bernard GrayBernard GrayBernard Peter Gray is a British businessman and journalist. Graduated from Oxford University. He was a special adviser to the Labour Party, based in the Ministry of Defence. In December 2010 he was appointed to the role of Chief of Defence Materiel in the Ministry of Defence, leading the Defence...
– since appointed to the position of Chief of Defence Materiel – communicated to an individual, or who exactly that individual was. '
Twitter leaks
On 8 May 2011 an account on social networking site Twitter posted the alleged details of several of the injunctions that had been mentioned in the papers. Public interest was such that the record for visits to Twitter in the UK was exceeded, with one in every 200 visits being made that day to its website. On the same date, details revealing the identity of UK footballer Ryan GiggsRyan Giggs
Ryan Joseph Giggs OBE is a Welsh professional footballer who plays for Manchester United. Giggs made his first appearance for the club during the 1990–91 season and has been a regular player since the 1991–92 season...
who had obtained an anonymised injunction in the case of CTB v News Group Newspapers
CTB v News Group Newspapers
CTB v News Group Newspapers is an English legal case between Manchester United player Ryan Giggs, given the pseudonym CTB, and defendants News Group Newspapers Limited and model Imogen Thomas....
and the woman with whom he had an alleged affair, Imogen Thomas
Imogen Thomas
Imogen Mary Thomas is a Welsh glamour model, beauty queen and television personality. She rose to fame in 2003, after winning Miss Wales, and achieved further note in 2006, when she lasted three months on the seventh series of reality TV series Big Brother.-Early life:Imogen was born to Charles...
, were posted on Twitter and reported by international press sources. The allegations were repeatedly reposted by many users, in a pattern similar to that in the legal defense of the Twitter Joke Trial
Trial of Paul Chambers
The Twitter Joke Trial is the name given to a legal case centred on an incident concerning Robin Hood Airport in England.During late December 2009 and early January 2010, cold weather had resulted in considerable disruption across northern England. Robin Hood airport was one of many airports which...
the year before, making it difficult to prosecute any one user. Nevertheless legal action was instigated by the footballer against Twitter in an attempt to obtain information on which users were involved. Paradoxically the Streisand effect
Streisand effect
The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely...
, however, then led to the player's name and the allegations being rebroadcast many more times across the internet.
Some of the allegations have been strongly denied by those named. As these have been widely reported in the media, which would then break any injunction, it has been speculated that these details posted on Twitter were incorrect. Jemima Khan
Jemima Khan
Jemima Marcelle Khan is a British writer and campaigner. She is associate editor of the New Statesman and European editor-at-large for Vanity Fair. She has worked as a charity fundraiser, human rights campaigner and contributing writer for British newspapers and magazines...
flatly denied the rumours involving her, tweeting, "Rumour that I have a super injunction preventing publication of "intimate" photos of me and Jeremy Clarkson
Jeremy Clarkson
Jeremy Charles Robert Clarkson is an English broadcaster, journalist and writer who specialises in motoring. He is best known for his role on the BBC TV show Top Gear along with co-presenters Richard Hammond and James May...
. NOT TRUE!" and, "I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!", finally labelling the rumours as "Vile hate tweets.". Khan took no legal action for libel against either the poster or those who publicised the story. Final Score
Final Score
Final Score is a BBC TV programme produced by BBC Sport. The programme is broadcast on late Saturday afternoons in England, Wales and Northern Ireland, usually on BBC ONE. BBC Northern Ireland opts away during the last ten minutes to cover local results, BBC Scotland runs a different programme...
presenter Gabby Logan
Gabby Logan
Gabby Logan is a television presenter and radio presenter, as well as a former Wales international gymnast. She currently hosts programmes for BBC Sport, mainly focusing on football.- Early life :...
also spoke out against the allegation she had an affair with former England and Newcastle United footballer, and fellow sports presenter Alan Shearer
Alan Shearer
Alan Shearer OBE, DL is a retired English footballer. He played as a striker in the top level of English league football for Southampton, Blackburn Rovers, Newcastle United and for the England national team...
, stating that the controversy, "Is muddying the waters for people who have done nothing wrong."
Sunday Herald
On 22 May 2011, Scottish newspaper the Sunday HeraldSunday Herald
The Sunday Herald is a Scottish Sunday newspaper launched on 7 February 1999. The ABC audited circulation in April 2011 showed sales of 31,123.From the start it has combined a centre-left stance with support for Scottish devolution...
published on its front page a photo of Ryan Giggs
Ryan Giggs
Ryan Joseph Giggs OBE is a Welsh professional footballer who plays for Manchester United. Giggs made his first appearance for the club during the 1990–91 season and has been a regular player since the 1991–92 season...
, the footballer alleged to have had an extra-marital affair with Imogen Thomas
Imogen Thomas
Imogen Mary Thomas is a Welsh glamour model, beauty queen and television personality. She rose to fame in 2003, after winning Miss Wales, and achieved further note in 2006, when she lasted three months on the seventh series of reality TV series Big Brother.-Early life:Imogen was born to Charles...
. The picture showed Giggs with his eyes blanked out with the caption "CENSORED". The newspaper editor, Richard Walker, stated that the injunction applied only in England and Wales, and had no legal force in Scotland.
Journalist and alleged contempt of court
On 13 May 2011 Giles CorenGiles Coren
Giles Coren is a British food critic, television presenter and novelist. He is known for expressing controversial opinions, and for his television appearances with the comedian Sue Perkins.-Personal:...
, a journalist for the Times
The Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
newspaper, attracted controversy by posting jokes on his Twitter web feed about Gareth Barry
Gareth Barry
Gareth Barry is an English footballer who plays for Manchester City and the England national football team.Barry moved to Aston Villa from Brighton & Hove Albion as a youngster, and spent 12 years at the club. He captained Aston Villa, and, at the end of his career with the club, lay eighth in...
and privacy injunctions. They were later deleted, but had been archived. It was reported on 22 May 2011 that a journalist might be jailed over Twitter comments about injunctions, as the case had been referred to the Attorney General for England and Wales
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, Dominic Grieve
Dominic Grieve
Dominic Charles Roberts Grieve, QC MP is a British Conservative politician, barrister and Queen's Counsel.He is the Member of Parliament for Beaconsfield and the Attorney General for England and Wales and the Advocate General for Northern Ireland.-Early life:Grieve was born in Lambeth, the son of...
. Paul Staines
Paul Staines
Paul Staines is an English-born Irish right-wing political blogger. Writer of the pseudonymous "Guido Fawkes' blog of parliamentary plots, rumours & conspiracy", which had as of February 2009, 118,000 visitors per month, his political blog has been described as "one of Britain's leading political...
implied in his Guido Fawkes blog that Giles Coren was the journalist involved, while on 23 May 2011, Liberal Democrat
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
Member of Parliament John Hemming
John Hemming (politician)
John Alexander Melvin Hemming is a British politician, the Member of Parliament for Birmingham Yardley and Group Chair of the Liberal Democrats on the city council of Birmingham, England....
spoke in the House of Commons and used parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
to identify Coren. Coren acknowledged on Twitter that he could face jail for alleged contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
.
ETK
ETK v News Group Newspapers Ltd is an anonymised privacy injunction that was reported in April 2011. ETK, a married man in the British entertainment industry, had an affairAffair
Affair may refer to professional, personal, or public business matters or to a particular business or private activity of a temporary duration, as in family affair, a private affair, or a romantic affair.-Political affair:...
with X, a colleague. Some issues arising from the affair led to X losing her job.
ETK won an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
to prevent News Group Newspapers Ltd from disclosing his identity, to protect his children. The woman, X, also agreed to the injunction being sought.
On 5 June 2011, Irish tabloid newspaper the Sunday World
Sunday World
The Sunday World is an Irish newspaper published by Sunday Newspapers Limited, a division of Independent News and Media. It is the largest selling "popular" newspaper in the Republic of Ireland and is also sold in Northern Ireland .-Origins:The Sunday World was Ireland's first tabloid newspaper...
published a story on its front page naming David Threlfall
David Threlfall
David Threlfall is an English stage, film and television actor and director best known for playing Frank Gallagher in Channel 4's Manchester-based drama series Shameless. He has also directed several episodes of the show.-Early life:...
and Pauline McLynn
Pauline McLynn
Pauline McLynn is an Irish actress, comedienne and author, best known for playing Mrs Doyle in the Channel 4 sitcom Father Ted, and Libby Croker in the Channel 4 comedy drama Shameless.- Early life :...
as involved in the injunction. Other Irish media sources have published the names of the people involved in the injunction.
Max Mosley
In another case, former F1 boss Max MosleyMax Mosley
Max Rufus Mosley is the former president of the Fédération Internationale de l'Automobile , a non-profit association that represents the interests of motoring organisations and car users worldwide...
, who had some time before been the subject of a story about his actions, took the News of the World
News of the World
The News of the World was a national red top newspaper published in the United Kingdom from 1843 to 2011. It was at one time the biggest selling English language newspaper in the world, and at closure still had one of the highest English language circulations...
to the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, in an attempt to prevent stories about people's private lives being published without first warning those concerned. Knowing that a story was to be published, the subject could apply for an injunction prohibiting publication, effectively creating a privacy law. On 10 May 2011 Mosley lost the case, on the grounds that Article 8 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
did not require a pre-notification and that such a measure "might operate as a form of censorship prior to publication
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
" due to the severity of the civil and criminal penalties and control thereof, violating its own Article 10, "Freedom of Expression".
Jeremy Clarkson
In October 2011, Jeremy ClarksonJeremy Clarkson
Jeremy Charles Robert Clarkson is an English broadcaster, journalist and writer who specialises in motoring. He is best known for his role on the BBC TV show Top Gear along with co-presenters Richard Hammond and James May...
voluntarily lifted a privacy injunction known as AMM v HXW, which had prevented the UK media from reporting claims by his former wife that they had an affair after he remarried. Clarkson commented: "Injunctions don’t work. You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
and the internet. It’s pointless."
Parliamentary privilege
On 10 March 2011, John HemmingJohn Hemming (politician)
John Alexander Melvin Hemming is a British politician, the Member of Parliament for Birmingham Yardley and Group Chair of the Liberal Democrats on the city council of Birmingham, England....
invoked parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
(where politicians under most circumstances cannot have civil or criminal proceedings brought against them for comments made within the scope of Parliamentary business) to reveal another super-injunction. The discussion involved an anonymised privacy injunction, concerning former Royal Bank of Scotland
Royal Bank of Scotland
The Royal Bank of Scotland Group is a British banking and insurance holding company in which the UK Government holds an 84% stake. This stake is held and managed through UK Financial Investments Limited, whose voting rights are limited to 75% in order for the bank to retain its listing on the...
head Sir Fred Goodwin
Fred Goodwin
Sir Frederick Anderson Goodwin CA, FCIBS is a Scottish chartered accountant and former banker who was chief executive of the Royal Bank of Scotland Group between 2001 and 2009....
.
On 19 May 2011, the rule of privilege was invoked again, in the House of Lords, Lord Stoneham
Ben Stoneham, Baron Stoneham of Droxford
Benjamin Russell Mackintosh Stoneham, Baron Stoneham of Droxford is a British peer, journalist, and politician.Stoneham's early politics were Labour. At the age of 29 he was Labour candidate in the Saffron Walden by-election of 1977. He was later treasurer of the moderate Campaign for Labour...
stated;
On 23 May 2011, shortly following a ruling by the High Court to retain the injunction, John Hemming
John Hemming (politician)
John Alexander Melvin Hemming is a British politician, the Member of Parliament for Birmingham Yardley and Group Chair of the Liberal Democrats on the city council of Birmingham, England....
once again utilised parliamentary privilege to name the footballer who sought the injunction in a parliamentary question. The BBC initially declined to report the question or name given by Hemming, but later updated its website with the news that the player was Ryan Giggs
Ryan Giggs
Ryan Joseph Giggs OBE is a Welsh professional footballer who plays for Manchester United. Giggs made his first appearance for the club during the 1990–91 season and has been a regular player since the 1991–92 season...
. Sky News
Sky News
Sky News is a 24-hour British and international satellite television news broadcaster with an emphasis on UK and international news stories.The service places emphasis on rolling news, including the latest breaking news. Sky News also hosts localised versions of the channel in Australia and in New...
immediately named the player as Ryan Giggs after Hemming's speech.
Hemming was called to order mid-question by the speaker John Bercow
John Bercow
John Simon Bercow is a British politician who has been the Speaker of the House of Commons in the United Kingdom since June 2009. Prior to his election to Speaker he was a member of the Conservative party....
who reminded the MP that 'occasions such as this are for raising the issues and principles involved, not seeking to flout for whatever purpose' – however, the speaker permitted the MP to complete the question and took no disciplinary action against him.
Report of judicial committee on super-injunctions
A report by a judicial committee led by Master of the RollsMaster of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, Lord Neuberger reported back on 19 May 2011 with a number of recommendations and observations:
- That the media be given advanced notice of any super-injunction to be passed (but not that the media should inform those to whom the allegations refer)
- That the judiciary had not created laws independent of parliament (a "privacy law") but that super-injunctions were being used too frequently and should be more time-limited.
- That reporting of statements made in the Commons or Lords, or in parliamentary committee, may not be covered by parliamentary privilege unless it can be proved they were published "in good faith and without malice". The report gave no judicial ruling or criteria as to statements which may or may not meet this criteron.
The report made no mention of the internet or new media and how the courts would propose to enforce injunctions against non-UK publishers and non-UK hosted websites. However, commenting on the committee report, the Lord Chief Justice, Lord Judge, stated that ways would be found "similar to those used against child pornography" to prevent the "misuse of modern technology" raising concerns on online censorship. Lord Judge has also commented on related technological challenges to the legal system such as use of Twitter in court and use of search engines by juries.
Lord Judge also commented on the wisdom of MPs and Lords using parliamentary privilege to subvert super-injunctions, asking "whether it's a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created". This led to an angry response from a number of MPs accusing the judiciary of "attempting to gag parliament".
British government position
David CameronDavid Cameron
David William Donald Cameron is the current Prime Minister of the United Kingdom, First Lord of the Treasury, Minister for the Civil Service and Leader of the Conservative Party. Cameron represents Witney as its Member of Parliament ....
was reported in April 2011 to be "uneasy" with the current use of super-injunctions. The Culture secretary Jeremy Hunt has stated that the Government does not intend to introduce a privacy law and that it would instead look towards clearer guidelines for judges ruling on injunctions. This was reaffirmed by David Cameron on 10 May 2011 when he blamed lack of parliamentary guidance forcing judges to rely on strict European law in their judgements. A spokesman for the Prime Minister welcomed the Neuberger report, stating that "We think this is a very useful report and it is something we will be considering very carefully." On 23 May 2011, speaking on ITV's Daybreak
Daybreak (ITV)
Daybreak is the weekday breakfast television programme on the British commercial ITV network that broadcasts on weekday mornings from 06:00 to 08:30 and is currently presented by Adrian Chiles and Christine Bleakley from Monday to Thursday with Dan Lobb and Kate Garraway on Fridays...
the Prime Minister stated that the law should be reviewed to "catch up with how people consume media today" and that the situation was "unsustainable". Ed Milliband, the leader of the opposition, commented that the law was "not working" and a review would be required.
See also
- Ferdinand v Mirror Group NewspapersFerdinand v Mirror Group NewspapersFerdinand v Mirror Group Newspapers is a 2011 High Court case in which the English footballer Rio Ferdinand was unsuccessful in preventing the publication of a tabloid newspaper story revealing details of an alleged sexual relationship.-Background:...
- Kaye v RobertsonKaye v RobertsonKaye v Robertson [1991] FSR 62 is a case in English law which is a notable case, expressing the view that there is no common law right to privacy in English law.-Facts:...
- NEJ v BDZ (Helen Wood)NEJ v BDZ (Helen Wood)NEJ v BDZ is a 2011 High Court case involving issues of privacy in English law.On 13 April 2011, Mr. Justice King granted an anonymised privacy injunction , preventing the publication of details of an alleged extra-marital relationship between NEJ NEJ v BDZ (Helen Wood) is a 2011 High Court case...
- Privacy in English lawPrivacy in English lawPrivacy in English law is a rapidly developing area of English law that considers in what situations an individual has a legal right to informational privacy, that is to say the protection of personal information from misuse or unauthorised disclosure. Privacy law is distinct from those laws such...
- Scots lawScots lawScots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
- SpycatcherSpycatcherSpycatcher: The Candid Autobiography of a Senior Intelligence Officer , is a book written by Peter Wright, former MI5 officer and Assistant Director, and co-author Paul Greengrass. It was published first in Australia...
External links
- Sex, lies and super-injunctions Duncan Lamont, Channel 4 NewsChannel 4 NewsChannel 4 News is the news division of British television broadcaster Channel 4. It is produced by ITN, and has been in operation since the broadcaster's launch in 1982.-Channel 4 News:...
. 28 April 2011. - Why super-injunctions don't happen in US Tom Geoghegan, BBC NewsBBC NewsBBC News is the department of the British Broadcasting Corporation responsible for the gathering and broadcasting of news and current affairs. The department is the world's largest broadcast news organisation and generates about 120 hours of radio and television output each day, as well as online...
. 10 May 2011. - The Goodwin and Giggs Show Stephen Sedley, London Review of BooksLondon Review of BooksThe London Review of Books is a fortnightly British magazine of literary and intellectual essays.-History:The LRB was founded in 1979, during the year-long lock-out at The Times, by publisher A...
. 16 June 2011.