As you might be able to tell from the last post, I’ve been spending a lot of time thinking about this, and it is impossible to get away from. My understand of the legal side of this has clarified further in the past 24 hours, particularly after reading the following article: Revealed: The four celebrities who could face huge legal bills for naming Ryan Giggs on Twitter over Imogen affair

A Couple of things struck me

1) Only the Daily Mail and the Evening Standard seem to be running this slant on the story at the moment
2) Most of the “celebrities” named are actually employed in some fashion by a newspaper

I’m trying to discover exactly how an injunction works, but the more I think about it, the more that I am convinced that the only twitter users that could possibly be prosecuted for breaching the gagging order are people who are employed by a newspaper or other media body.

My understanding of how injunctions work are as follows

Party A goes to court to obtain an injunction to stop Party B telling people Fact X.
The Court grants party A the injunction.
The Court must in some way communicate that injunction to Party B in order that Party B understands the nature of Fact X – exactly what it is they are not allowed to say.
If Party B now still publishes Fact X they are in contempt of court and can be prosecuted with criminal charges.

What I am not clear on is the following.

Party C has, through a completely independent source, discovered Fact X to be true. They have never had a injunction order communicated to them, nor can they discover the exact details of that injunction because the key pertinent points are subject to the secrecy of the injunction. Therefore Party C decides to communicate Fact X to people known to him using the means of communication that he typically uses. How can Party C be guilty of breaching an injunction, the details of which he had no way of knowing?

To put this into English, the injunction sought by Ryan Giggs’ Lawyers (Party A) was directed and communicated to the news media (Party B) in the UK. I assume in doing so the name of Ryan Giggs was also communicated to those institutions in order that they understood exactly who they were not allowed to name. The wide variety of users of twitter (Party C) came upon the name Ryan Giggs through rumour and gossip on the internet and some will have had it direct from the horse’s mouth. Twitter users have no way of knowing for sure that Ryan Giggs was the actual subject of the injunction until it was discussed in Parliament. They believed it to be true, but without having seen the full injunction for themselves they could not KNOW it to be true. The only exception to this rule is those Twitter users that are employed by the news media.

I do not believe therefore that any twitter users who were not employed by the news media can be considered to be in contempt of court (clearly they are contemptuous of the court but that is a different matter)

What is interesting though is that the news media are determined to make Joe Public twitter users feel that they are in the same boat as the journalist twitter users who breached the injunction. Giles Coren works for the Times – he would have been privy to the information conveyed in the injunction and therefore would be subject to it. The fact that he has not used an official channel of his employer does not necessarily exempt him from the injunction (although I don’t even know this for sure, it depends on the detail of the injunction which – as explained above – I have no way of reading!).

Giles Coren however is in a completely different boat from the the 75,000 other people who tweed Ryan Giggs name. The vast majority of them are not employed by news media, cannot have read the injunction, cannot know what action is not permitted and so cannot be held liable for taking that action. They could be held liable under other areas of UK law such as libel and defamation law if they can be shown to be either a) wrong or b) malicious in their actions, but they are not liable for breaching the injunction.

The Daily Mail and it’s tabloid Ugly Sisters would love us all to believe that we are all in the same boat as them and they are standing up for our rights, but I do not believe that to be the case. The country’s perception of this case has been completely skewed by the news coverage of it, (which only serves to highlight the continuing power of the press) but that doesn’t mean they are right. They may quote the Attorney General who said:

“Those who I think may take an idea that modern methods of communication mean they can act with impunity may well find themselves in for a rude shock…The courts do have the power to punish those who breach injunctions. Those who decide flagrantly to do so should bear that in mind”

My reading of this is that the news media cannot resort to new technologies to get around a court order and should rightfully be punished if they do so, but nothing in his statement necessarily suggests that I could be liable for naming Ryan Giggs in this blog post for example because I cannot breach an injunction that I cannot read! The Daily Mail would love me to believe that it does, but that’s the Daily Hate for you.

However all of this highlights that a legal system based on “secret” injunctions are unsustainable in a world where everyone has the ability to broadcast content anonymously and with impunity. Such secret measures should be reserved for those case that it was originally intended – to protect the vulnerable (small children in abuse cases for example) and national security. Wasting this power on philandering footballers is frankly negligent. Instead we need to apply a proper privacy law which protects people’s truly private behaviour that is not in the public interest to be broadcast. And just to be clear – shagging a Big Brother housemate is not a private activity!

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