A “guest” post by Charles Russell partner Nick Armstrong, in our Sports & Media Group:
Twitter Inc. and some of its users are being sued in the High Court in London by the individual who obtained an injunction against The Sun and Imogen Thomas concerning allegations about his private life. In the injunction action (see below), and in the new Twitter action, he is referred to as “CTB”. The full case title of the new action is CTB v. Twitter Inc. and Persons Unknown. It is case no. HQ11X01814.
The action was commenced on 18 May. The “persons unknown” are described as those “responsible for the publication of information on the Twitter accounts” but the latter are listed in confidential appendices. It relates to the widely-reported posting on May 8 of a series of “tweets” purporting to name a number of celebrities who had obtained so-called super-injunctions, and describe the activities covered by the injunctions.
It marks the first concerted attempt to deal legally with way in which social media have of late been used an a vehicle for gossip and supposed ‘information’ in an apparent attempt to undermine or evade the authority of the High Court.
The news comes in the week that sees judicial attempts to inject some clarity into a public debate which in the media at least has featured wild and inaccurate comment about the perceived threat posed by “super injunctions”. For one thing, the injunctions that have caused the debate aren’t super injunctions at all – the term was hijacked in the media to refer misleadingly to the injunctions obtained by celebrities whose identities were anonymised to enable the injunction to be effective. The Neuberger Report (of the Committee on Super-Injunctions) was published on 20 May. It points out that in fact the Super-Injunction is an order which prohibits (i) publishing confidential or private information AND (ii) publicising or informing others of the existence of the order and the proceedings. Super-injunctions are reserved for exceptional cases and are only granted for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed. Since January 2010, only two such super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days.
That is not the case with the celebrity injunctions, which are termed “Anonymised Injunctions” i.e. the names of either or both of the parties to the proceedings are not stated.
In fact the principles of open justice are respected by Anonymised Injunctions because, since the relevant parties are anonymised, a full judgment can be issued in which the judge sets out his reasons for applying the balancing factors imposed by the Human Rights Act 1998 (right to freedom of expression v right to respect for private and family life) in making the order. This strikes the balance between open justice, and appropriate protection of privacy where the judge has found that to be required on the basis of the evidence put before him.
This happened this week when Eady J published his judgment in the CTB ‘Anonymised Injunction’ case itself. It should be read by anyone thinking of commenting about the issue of Anonymised Injunctions, as it puts in context much ill-informed comment which has obscured many of the real issues involved in the developing (and still very young) law of privacy enacted by Parliament in 1998 and applied by the judiciary.