Is it a bird? Is it a plane? No, it’s a super-injunction!

Wonder who CTB is? Well, a Google search will no doubt tell you.  Respecting the orders of the court, we’ll simply say he’s a famous English footballer.  Worldwide media coverage about CTB’s alleged affair with UK Big Brother contestant Imogen Thomas, has sparked debate about the increasing grant of the “super-injunction”.  To clarify, this debate is somewhat misinformed as media sources have inaccurately identified the injunctions obtained as super-injunctions.  CTB’s injunction is not a super-injunction, but rather an “anonymised injunction,” as it stops the press from publishing his name but doesn’t stop the press from reporting on the injunction order itself.  In Australia, these are more commonly known as suppression orders.  We have previously blogged about celebrity suppression orders here.  The debate is topical in light of the rapid rise in social media.

Super-injunction v anonymised injunction, what’s the difference?*

A super-injunction is an interim injunction available in the UK which restrains a person from both:

(a) publishing information about the applicant which is confidential or private; and

(b) publishing information about the existence of the injunction, proceedings or orders.

A super-injunction does not only bind those against whom it is issued, but also any third parties who have notice of it, pursuant to the Spycatcher principle.  However, it will only apply to parties within the Court’s jurisdiction.

An anonymised injunction restrains a person from publishing information about the applicant which is confidential or private, where the names of one or both parties to the proceedings is not stated.

CTB v Newsgroup Newspapers & Thomas [2011] EWHC 1232 (QB)

Under a pseudonym, CTB gained an anonymised injunction against Imogen Thomas and Newsgroup Newspapers (the publishers of The Sun and News of the World).  In making an order for anonymity, Eady J had to balance  the competing rights within the European Convention on Human Rights of Article 8 (right to privacy) and Article 10 (right to freedom of speech).

Eady J held that on balance in this case, the right to privacy prevailed over the right to freedom of speech: “It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish…title-tattle about the activities of footballers’ wives and girlfriends”.

Interestingly, Ms Thomas has not been afforded anonymity.  Eady J suggests this is because “she was already identified, apparently of her own volition,” in an article The Sun published on 14 April 2011.

The injunction has not been lifted from Thomas or Newsgroup, despite widespread publication online.

In a digital age, are anonymity injunctions futile?

While hard-copy newspapers still remain a popular source of news, many readers are now accessing their news online.  This means that more easily than ever, users are able to access news sites and articles from a variety of jurisdictions.  The Scottish Sunday Herald was able to publish CTB’s face and name, without infringing the injunction, as Scotland is outside the jurisdictional reach of the court order.

Parliamentary privilege can also wreak havoc upon an otherwise upstanding anonymity order.  MP John Hemming revealed CTB’s identity during question time in the House of Commons.  Tabloid newspapers jumped on this opportunity to publish the otherwise off-limits name.

Further, an injunction only restrains the party to the proceedings and any third party who is given notice of the injunction.  Within a week of the injunction being granted, over 75,000 users had tweeted CTB’s identity on Twitter.  It remains to be seen whether millions of individual users worldwide could be imputed with knowledge of an injunction.  Despite best efforts, the legal system may be powerless to prevent such details being released.

What about my tweets?

Users of Twitter beware.  Access to and use of Twitter is governed by, and indicates acceptance of, Twitter’s Terms of Service.  The Terms of Service make the user responsible for all posts, and state that the user must comply with all applicable local, national and international laws, rules and regulations.    Further, Twitter’s Privacy Policy states that “We may disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request.

CTB has commenced a separate action against Twitter Inc. and Persons Unknown (described as those “responsible for the publication of information on the Twitter accounts”).  CTB may try to compel Twitter to reveal the personal details of the relevant users.  There are likely to be arguments about the UK Court’s jurisdiction over Twitter in California, but Twitter has suggested that if legally required to do so, it would hand over such information to authorities.  However, Twitter will attempt to notify users in advance, so the users can fight the application in court.

In a separate libel matter, Twitter has already complied with a court order to provide the name, email address and telephone number of an anonymous user who tweeted critical comments about the South Tyneside council in the UK.

Where to from here?

Of the 30 or so anonymised injunctions awarded in Britain since 2008, all but three have gone to males.  Social and legal commentators are concerned that at a cost of around £100,000 (AU$154,000), these injunctions are being used by powerful, wealthy men to keep their extra-marital indiscretions a secret.  Whilst this avenue is only viable for the very rich, a hundred thousand pounds could seem diminutive in comparison with a possible loss of income, sponsorship dollars and future earning capacity if one’s reputation is dragged through the mud.

To [email protected]: “They say money can’t buy you love. That’s not true, it’ll not only buy you love but also a super-injunction so no one finds out.”  But is an anonymity injunction an appropriate remedy in the age of social media?  Should celebrities’ right to privacy prevail?  Or should Imogen Thomas be entitled, literally, to her day in The Sun?  What do you think?

*With reference to the Report of the Committee on Super-Injunctions: “Super-Injunctions, Anonymised Injunctions and Open Justice”, Lord Neuberger, Master of the Rolls: 20 May 2011.

About the Author

Samantha McHugh
Samantha McHugh is a solicitor loving everything media, food, fashion and IP, who would like to get to pilates more frequently. With a penchant for mustard-coloured home furnishings and a mean repertoire of desserts, Sam has dreams of one day juggling a successful legal career with a chase for an endless summer around the globe. Sam also enjoys reality TV and online shopping to an extent which is unhealthy. Sam loves writing posts about branding, marketing, celebrities and anything that makes her giggle.
View all posts by Samantha McHugh

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