Friday, 27 May 2011

Super-injunctions, Twitter and Ryan Giggs

I really could care less what the tabloids have to say about the social or private life of celebrities. For many years, I have bought none of the smaller sheets except the ‘Daily Mail’ for this very reason. Why do I care which rock star is getting his end away with which model? Who gives a toss if some film star drank too much champagne in a bar? Will it affect my life? Will it influence the war on terror? Unlikely.

So when columnists lambaste their colleagues who have focused on Ryan Giggs' battle for anonymity in his affair with Imogen Thomas, it can seem a very moralistic and fair attitude at a first glance. Indeed, the argument per-se is sound. It's the bigger picture that is cause for concern, for the revelation of Giggs' identity is a massive safeguard for free press and freedom of information in general.

First of all, let's remind ourselves how a super-injunction works. A celebrity - or other person with wealth stretching well beyond the average - gets involved in any situation that could be deemed "scandalous" in the press. He or she, aware of the potential outrage, contacts a law firm - most probably a prestigious one such as Shillings or Carter-Ruck - and instructs them to take action. The firm contacts a court and, if all goes to plan, the judge will rule that the client's right to privacy outweighs the public interest. (Our constitution grants the press the right to report anything that is "in the public interest"). Said law firm then send out threatening letters to the mainstream media groups warning them of nasty consequences should they breach the order. The solicitors sit back and watch their bank balance shoot up, the celebrity can relax.

The potential problem should be obvious by now. The term 'public interest' is highly ambiguous. In the case of a man cheating on his wife, it may be straightforward, but ‘Private Eye’ magazine recently highlighted some other cases where the judge ruled the "public interest" was outweighed. They included:

- The effect a sexual relationship between two senior employees had on a major global business during a time when it hit difficulties.

- How a newspaper columnist and bestselling author blocked his ex-wife from writing a book or talking to a journalist about him. (This would be unconstitutional in the US).

- A well known sportsman who had affairs with at least three other people was granted anonymity even though the court recognised that in doing so, the behaviour of completely innocent people would be called into question.

- Several cases involving alleged blackmail where there is no record that police were even informed.

So we see that in many cases, the interpretation of balance between privacy and public interest may well have been seriously flawed, and the press have been censored as a result. But in the case of Giggs, perhaps there was some justification for privacy, so maybe justice was served? Hardly.

Giggs' injunction was not imposed in the interest of fairness or justice, it was enforced because he could afford to censor the media. Your average citizen simply cannot afford to go around taking out injunctions, even if they did manage something newsworthy. In essence, super-injunctions create a divide between rich and lower classes. The logical conclusion to this divide being the right of the wealthy to censor the press.

But Giggs made a fatal mistake: he ignored the 'Streisland Effect'. When he was named (alongside Gordon Ramsey and others) as a super-injunction holder by a user on Twitter, he instructed his law firm to contact Twitter and obtain the details of those who named him, with the obvious intent of pursuing their punishment. In short, he was attempting to control what people say on social media sites.

Let's be clear about the precedent Giggs was aiming to set here. He was attempting to impose a rule that if you or I shared a piece of true gossip on Twitter, Facebook or any other social media network, you could face court action for it. It doesn't matter that it was true, it doesn't matter that everyone knew it anyway, you'd still be faced with crippling legal costs, at best.

That's why I greatly admire the Lib Dem MP John Hemming for quite rightly using our old constitutional guard of parliamentary privilege in naming Ryan. Moreover I despise John Bercow - who represents everything that is wrong with the Conservative Party - for his rebuttal. I also applaud every one of the 70,000 or so who immediately jumped to name Ryan on Twitter, sending a clear message that people won't be told what they can and can't say on a social network site.

Ryan Giggs is a great footballer with a great record and lots of respect. Had he simply appeared in public with his wife and attempted to repair the damage he'd done, the "scandal" would be old news before long. Instead he choose to contribute to massive censorship and attempted bullying of internet users. In consequence he magnified knowledge of his affair tenfold. That he failed to succeeded in his attack on Twitter is something we should all be grateful for.


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