A court ruling earlier this week 'downgraded' the super-injunction, citing the Internet making it 'impossible' to police, thus revealing the fact that an injunction has been sought, and the initials of the soccer player who took out the injunction as "CTB". While many have speculated as to who this soccer player is, his name is????????? It hasn't stopped other US news publications publishing suggested names , however.
This comes only months after the US government subpoenaed Twitter in a bid to support the ongoing criminal investigation into the Wikileaks organisation, to collect names of those involved in the organisation or its operations. As Twitter is a US-based entity, British courts have only the right to ask. Twitter has to decide whether to hand over the names, which as past experience shows it is often reluctant to do so. While UK courts claim worldwide jurisdiction, which famously led to the arrest of former Chilean dictator, General Augusto Pinochet in London in , Twitter can effectively ignore this recent legal case claiming rights under the First Amendment.
The British court system does not have a process for subpoenaing, but a court can 'summon' a subject to give evidence, or face contempt of court charges if they do not. Currently, only British citizens are subject to the court-issued gagging order. Non-UK citizens are not, but this could change if the challenge is brought to the United States. The only viable way for Twitter to hand over the personal information of users who may have tweeted the details of this gagging order is for CTB and his lawyers to apply to a US court for a subpoena, just as the US government did with the Wikileaks members.
However, this poses a distinct problem of anonymity. CTB would have to apply using his full name, thus negating the super-injunction altogether. Some super injunctions have been been lifted and the details became public knowledge.
The issue was first brought to light by The Guardian when they reported on details of toxic dumping in Africa by Trafigura. This was made possible by talk of the dumping in the British Parliament, which is not covered by injunction laws. Guardian editor Alan Rusbridger coined the term "super injunction". The average Brit likely became aware of the injunctions when it was revealed that John Terry, then captain of England's soccer team, had received an injunction after he was found to be cheating on his wife with a teammate's girlfriend.
Most of the recent injunctions in the British press have not been technically "super". For example, it can be reported that Imogan Thomas had a six month affair with a Premiership football player, but his name, or even the club he plays for, cannot be named. Super injunctions have evolved out of a series of court rulings, going back to the Human Rights Act. Article 8 of the act reads :. Various judges have interpreted this article in different ways since its inception, eventually leading to the practice of super injunctions in the past few years.
There is a fairly persuasive argument that the injunctions are a result of decades of the UK's notoriously rabid press culture.
The absurdly wide extend of phone hacking in British media has recently come to light, but there has been decades of questionably moral behavior from tabloids. Worth remembering - the UK does not have a written constitution and there is no entrenched protection of freedom of speech like in America. Many argue that the use of super injunctions represents an affront to freedom of speech, and that the UKs strong libel laws mean that the country is becoming a battleground for " libel tourism ".
The injunctions are also criticized for favoring the rich due to the large legal costs required to implement them. Last week Britain's top judges recommended the injunctions should be used more sparingly. On May 8th an anonymous Twitter user began tweeting alleged details of celebrity scandals that appeared to be super injunctions -- including details that appear to be about the football player "CTB".
The judge ruled that as they had reached a compromise the interim injunction had not become final and had in fact ceased to be in effect which no longer bound third parties. The claimant then sought a second super injunction against News Group Newspapers Ltd pending the trial. Having considered the balance of freedom of expression and a right to privacy, the judge rejected the injunction, leaving the newspaper free to publish the details once the appeal was heard which was ultimately rejected as he had engaged in a public spat with his business partner and chef Gordon Ramsay.
This case has been used to demonstrate that if you take a quarrel public, it becomes difficult to differentiate between public and private life and any media coverage would not adversely affect them so therefore injunctions cannot be applied. Perhaps the most infamous super injunction of them all. The case brought up many interesting points.
Firstly that Giggs was a victim of the Streisand Effect whereby attempting to hide his identity only made Twitter users more intent on finding out the mystery footballer and therefore actually brought more exposure than had he done nothing. Giggs may have attempted to bring action against Twitter and other media outlets in the United States however owing to their first amendment rights as well as Section of the Communications Decency Act making platforms immune from what their users post, it would likely have been futile.
Additionally as Giggs had not applied for an interdict the Scottish version of an injunction , the information was not restrained north of the border. The Scottish newspaper, the Sunday Herald, then proceeded to reveal his identity with a very thinly hidden image. Despite this, the member of parliament naming Giggs and the story effectively being public knowledge, the injunction remained in place even as The Sun launched further appeals.
Finally, 10 months after the original application, Giggs gave permission for the court to reveal his identity. He attempted to claim damages from The Sun but this was rejected.
The case did highlight the inadequacies of the law when dealing with social media platforms but Twitter has subsequently said they will identify users where requested by courts likely through Norwich Pharmacal orders. Since this case, there has been a noted reduction in the number of orders granted or at least those that have come to the public attention.
Do you require an injunction or need to contest one? Alston Asquith has offices in London and Hertfordshire and can arrange a call to provide some initial advice on the steps to take. We pride ourselves on our relationship with our clients as well as the service we provide.
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