HE had become "he who cannot be named".
Not JK Rowling’s arch villain Voldemort, but premiership footballer Ryan Giggs. No longer. Tension between Westminster and the judiciary over the granting of superinjunctions came to a dramatic head yesterday after Liberal Democrat MP John Hemming used parliamentary privilege to name the Manchester United star. Hours earlier the High Court had refused to lift the controversial superinjunction protecting the player’s privacy. What happens next?
Events surrounding the legal action became more akin to farce than fantasy at the weekend when our sister paper the Sunday Herald both named the footballer and printed a minimally censored photograph of him on its front page, on the basis that his lawyers had not taken out a separate interdict in Scotland. (During his trip to London yesterday, it suited First minister Alex Salmond politically to use the story as a sharp reminder that Scotland is another country with a separate legal system.)
In the meantime, some English newspapers had tied themselves in such knots over the superinjunction that they were not even prepared to name the Scottish publication that has taken the plunge, lest it somehow rebound upon them. The Sunday Herald deserves credit for demonstrating so effectively that the current situation was, as the Prime Minister conceded yesterday, both unsustainable and unfair.
It was unsustainable because while newspapers were gagged and bound by this and other superinjunctions, the identity of those involved and the allegations about them are widely available on Twitter and the internet. If these new media had not been invented, only a handful of people would know about these stories. But it is futile for Lord Chief Justice Lord Judge to complain that modern technology is “totally out of control” because, for better or worse, the genie cannot be put back in the bottle. Because much of the electronic media is based in the US, it lies beyond British jurisdiction.
It is absurd to believe that an injunction taken out in an English court can be enforced globally. If a Chinese judge ordained that nobody in the world could report on its political prisoner Ai Weiwei, would the global media meekly obey? Hopefully not.
Why should newspapers and broadcasters be restrained from publishing information that its readers can easily obtain on their computers and mobile phones? If they print untruths, newspapers already have the laws of defamation and libel to fear, as well as the Press Complaints Commission.
Judges may see themselves as attempting to navigate the hazardous waters between the right to privacy and freedom of information but in several recent cases, they appear to have made poor decisions. In both the Trafigura case about the illegal export of toxic waste to Africa and the action brought by Sir Fred Goodwin, there is a strong public interest in favour of publication. Yet in the absence of specific privacy legislation in Britain, unelected judges have been making law on the hoof. So yesterday’s announcement of a parliamentary commission to study this area is overdue. There is less obvious genuine public interest (as opposed to the often prurient interest of the public) in exposing the alleged sexual peccadillos of celebrities. And yet should the same people who court publicity when it suits them, be able to bend the law to protect themselves from the consequences of their misdeeds?
Ordinary individuals certainly have a right to a measure of privacy and this is enshrined in the European Human Rights Act. We need a wider public debate about this because privacy is being eroded not so much by tabloid voyeurism as the way individuals themselves use the social media. The idea of what a private life consists of is being altered by people’s willingness to share so much personal detail on Twitter and social networking sites. It is even unclear what words like “publication” and “distribution” now mean. There will never be agreement about where to draw the line between the right to privacy and the public right to know but there is a widespread feeling that at the moment that it is wrong that newspapers cannot print something that is already the talk of the steamie.
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