Super-injunctions: Can anything be truly private in the age of the internet?

By Kathryn Cummings

If you hear someone has a secret but you’re not allowed to know, it can send you insane.

That’s exactly what happened to me last month when I read about a new sex scandal that had hit the papers but I wasn’t allowed to know who it was.

But then, with a little online searching, I came across the alleged sex secrets of the rich and famous and also which celebrities had taken out these so called super-injunctions. 

One of Manchester’s worst kept secrets was leaked through an unknown Twitter user last month. Imogen Thomas was named as the woman who a footballer allegedly had an affair with, but an injunction was taken out, which prevents him from being identified even though his name was circulated around the internet and  his picture had been put on the front page of a Scottish newspaper. 

Privacy laws were then thrown into chaos when MP John Hemming named the footballer by using parliamentary privilege. The MP said he had a right to name him as he had already been identified by over 70,000 people on Twitter, but – even after this intervention – the court still insisted the injunction should be upheld.

Other famous people have been identified for using the law to prevent information being published, but it becomes hard to work out which allegations are true and which are not.

When the names and details were revealed on Twitter it caused a storm, with the unknown user increasing his or her followers by the minute.

Thousands of Twitter users, including myself, believed they knew who had taken out super-injunctions to cover up their sordid sex lives.

The online challenge of social media sites raises awkward questions about privacy laws, but can anything be truly private in the age of the internet?

Super-injunctions forbid any mention that the injunction even exists. We have no idea how many super-injunctions are in force and, even if you did know, you wouldn’t be able to say.

Nicky Campbell raised the subject of super-injunction debate on The Big Questions, with the question:  Is the press out of control?

James O’Brien, defending the press, said: “If you’ve been found out, if you’ve been caught bang to rights with egg on your face and your pants down, there is nothing in the British constitution that allows you to keep it a secret. If you don’t want it on the front page of every newspaper then don’t do it.”

Alistair Campbell suggested the media needed to realise the difference between public interest and what the public are interested in.

Helen Wood, of Bolton, who gained notoriety by revealing she had slept with Wayne Rooney last year, was given a gagging order by the courts last month to stop her revealing the name of a famous actor who had paid her for sex.

She told Granada Reports: “I don’t agree with super-injunctions. They discriminate against women. They are setting a bad example to people out there, that they can go out and commit adultery and then get an injunction to keep it hidden.” 

Since the Twitter row began, super-injunctions are being seen by many people as pointless. The revelations on Twitter explode the idea that our freedom of speech can be restricted.

Melanie McGuirk, a media lawyer at Pannone LLP in Manchester, feels super-injunctions are far from pointless.

She said: “Used in the right way in the right circumstances, super injunctions are an appropriate tool to protect the legitimate interests of individuals, particularly those who are being harassed, stalked, and are the victims of blackmail or who may be threatened with violence.

“It is not always the interests of celebrities or sports people that such injunctions are used to protect. It’s important there is a mechanism in place for individuals to be able to avail themselves of protection where their basic human rights are being threatened.

“They are an important part of our judicial system, so long as their application is not abused.”

But is it fair that celebrities in Britain can take expensive measures to protect their privacy and lie to people who look up to them about what they really get up to?

 There is a growing irritation about these injunctions and the fact that they are used primarily by the rich. 

Melanie explains:  “The perception is that injunctions are exclusive and are available only to the rich. There is a fear that a new form of secret justice is applied that is not open to scrutiny by the world, whereas, with anonymity orders, many of the details of the proceedings are published and can be, in fact, scrutinised.”

Over the last couple of weeks it has been announced that users of Twitter and other social networking sites could be prosecuted if they breach privacy laws. But, along with privilege being abused in parliament, it is not clear what type of privacy laws we are meant to be respecting.

Paul Jonson, Media Lawyer at Manchester’s Pannone LLP, explains: “It is clear that individuals, such as Max Mosley, have felt so frustrated by the state of the current case law that they have taken matters into their own hands.

“It may well be appropriate for Parliament to introduce a statutory privacy law at some stage in the future. For example, the Press Complaints Commission be given statutory privacy law and more ‘teeth’, including powers to levy substantial fines and to award compensation and legal costs to complainants.”

After all the media controversy, it is uncertain what is the future for the super-injunction. Ultimately there are good reasons and legitimate grounds for super-injunctions to be granted in the right circumstances, and it is right and proper that the media continue to scrutinise the process and circumstances in which they are awarded.

Mr Jonson said: “Super-injunctions are going to be looked at more carefully and scrutinised by the Ministry of Justice and the committee on super-injunctions and, as such, we must expect there to be some changes, perhaps along the lines suggested by commentators, not least that the public can see not only justice is being done, but also that justice is being seen to be done, which is important.”

While it looks as though the super-injunction is here to stay, it remains to be seen whether it will stop Twitter users from exposing the names of celebrities taking them out. Only time will tell…

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