Wednesday, 25 May 2011

Superinjunctions, Libel Tourism and Justice

"If the law supposes that," said Mr. Bumble,. "the law is a ass-a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience-by experience." (Oliver Twist by Charles Dickens)

"Most of us do not make our living by holding ourselves up as paragons of virtue. However, politicians, CEOs, celebrities, and the rich and famous often do exactly that (the Charlie Sheens of the world excepted). Those public figures make their money based on their image; it's what they get paid for. So if that image isn't accurate, it's a deception on the public."
(Report on FoxNews, 7)

I don't keep up with football at all, and had not ever heard of the name of Ryan Giggs until recently. Now, of course, the whole outcry over his "superinjunction" being broken by Twitter has led to even a soccer ignoramus like myself knowing who he is, although I have to take the newspapers word for it that he is a top footballer! As the Guardian reported, this has led to the law becoming a laughing stock, because the judge is trying to act like King Canute, and stop an event occurring over which he has no power or jurisdiction; Twitter, after all, is based in America.

The athlete's lawyers argued, and the judge in the case agreed, that not only was posting the player's name on Twitter a violation, which had been done tens of thousands of times by then, but that also Twitter itself, despite being a US company, must follow UK law. (1)

The notion that the United States must follow UK law has of course already arising in the case of "libel tourism" whereby punitive and damaging libel actions are taken out to silence people and prevent, among other matters, criticism of pharmaceutical products in academic journals, and criticism of regimes such as Saudi Arabia in their ambivalent attitude to terrorism.

In the case of the latter, the Dr Rachel Ehrenfel's book "Funding Terrorism", which exposed the ways in which Arab nations funded terrorism and played a double game with the West, led to the author being sued in British courts by multi-millionaire Saudi Arabian businessman Sheikh Khalid bin Mahfouz on the basis of 23 copies being sold in the UK via the internet,
and because the first chapter was online:

Ehrenfeld refused to respond to the litigation, and the high court awarded summary judgment to Sheikh bin Mahfouz and his sons. The New York legislature acted - and made its legislation retrospective - after the state and federal courts held that the state's citizens could not be protected from the enforcement of judgments by foreign libel courts. (2)

This has now led to the following States passing legislation to stop their courts enforcing "libel tourism" judgments from other jurisdictions, which usually means England: New Jersey, Hawaii, California, Florida, New York, and Illinois. And the list is growing. The judges in British courts, meanwhile, seem oblivious to these developments, and the fracturing of International Law that their actions have caused.

In the case of Twitter, I suspect they will find it difficult. As California is one of the States which has acted aggressively to curb "libel tourism", I suspect any demands by British courts will fall on deaf ears. UK courts claim worldwide jurisdiction but this is based on mutual co-operation between different nation states. One country trying to lay down the law to another and being extremely unconciliatory in its demands, will not lead to improved relations, and for Americans will undoubtedly call to mind the days before Independence when the remote and out of touch British government tried to control matters overseas. It will be seen once more to be claiming an arrogant sovereignty which it does not deserve, and which will not be permitted.

The view from America on Cnet is as follows:

Here's the quick version of the story. British judges tend to favor those who have an awful lot of money. So they have begun to issue things that have been called super-injunctions. These basically state that a famous person who might have behaved badly outside of his marriage or merely outside of a pub, cannot be publicly outed. It's called a super-injunction because news organizations cannot even publish the fact that such a super-injunction exists. In this case, a seemingly very nice Welsh lady called Imogen Thomas wanted to reveal details of her affair with this married and very famous soccer player after he allegedly told her he loved her and then, well, allegedly didn't quite live up to those elevated feelings. The super-injunction prevented her from revealing the player's name, so she has been forced merely to reveal her distraught feelings on British television and in British newspapers.... How long, though, can the English legal system continue to protect those who have money from being accountable to those whom they might have disappointed? For Twitter is a stunningly immediate, sweetly contemporary and really rather effective way of transmitting information to a rather wide swathe of the human race.

The lawyers commenting on the breaking of the superinjunction cite the judges as having to follow the law, and balance the right to privacy against the right of freedom of speech, and I've heard quite a few cite the arguments that if the allegations have been made but not tested in court then the person has a right to privacy until they have been proven to be true.

But why is there so much of a furore about a football star's extra-marital affair? Or for that matter about BBC's Andrew Marr's affair, again protected by a superinjunction?

Part of it has to do with the dislike of the fact that money can buy the kind of privacy that ordinary people can't afford, and can be used to cover up blemishes in one's reputation. As the New York Times notes:

This is where the pursuit of Giggs fits in. He is accused of hypocrisy, of selling the dream of the sports icon, of drawing a salary of millions for playing a game and at the same time seeking to restrain the news media from prying into his apparently life.(4)

No one likes to be exposed as having committed adultery, and people like to keep their reputation unsullied and as perfect as possible, and keep the skeletons firmly in the cupboard. That kind of publicity can also be very painful, especially if the affair is over, but the wounds can be re-opened. So it is understandable that these people behave in this way. We all have behaved at times in ways in which we are not proud, so I have a degree of sympathy. I would not cast the first stone.

However, what is not the case is that they are denying the affairs or claiming the accusations are false. If that was the case, then that is a matter which could be tested in the courts against the individual or newspaper making the allegation; and they are certainly rich enough to sue if it is a wrongful accusation. In the case of Andrew Marr, he has come clean and admitted the affair. Mr Giggs seems annoyed because his private life has been exposed, but he has not denied the matters exposed.

And I think this is the reason why it rouses such passions in those exposing these affairs - these injunctions are designed not to cover up something which might be false - there would certainly be a case for Captain Alfred Dreyfus taking out a superinjunction to save his reputation because he had been falsely accused - but to cover up a misdemeanor. In some cases, and Mr Giggs appears to be one such case, it is to cover up someone behaving like a cad. That is surely not a good application of the law, and it suggests that the law is being used to hide moral shortcomings, and protect such people against those they have damaged emotionally though their behaviour.

More than 80 privacy injunctions have been granted by the courts in recent years, many of them to footballers, celebrities and businessmen who want to prevent reporting of extra-marital affairs.(5)

I suspect that had the lawyers thought of it at the time, it would have been used by Cecil Parkinson. He was Minister who had an affair with Sara Keays, and who promised her (according to her account, not disputed) that he would divorce his wife and marry her after the election, and then failed to do so, going back on his promises - perfect grounds for a superinjunction!

But there are more serious matters involved. The index on censorship notes of the Giggs affair that:

In this case, as in reportedly many others, injunctions have become a tool of powerful public figures to try to stop embarrassing facts from being discussed, and in this instance the injunction process is ironically being used to require Twitter to pierce the anonymity of its customers based on the content of their speech. Particularly in this situation - where very public figures who actively seek public attention much of the time are trying to ensure that the public only learns the heroic, and not the embarrassing, facts about them - these broad super injunctions raise deep concerns. (6)

The failure of the superinjunction calls the Courts into disrepute. The English courts themselves in the case of Max Mosley, noted that:

"The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain  gestures."

And as Index on Censorship suggests, there is a lack of balance at the heart of this in the judges assessment of the law:

The controversial super injunction and anonymised injunction privacy procedures are born of judge's interpretations of 1998 Human Rights Act which aimed, nobly, at protecting individuals' privacy, while also protecting their right to freedom of expression. However, the balance here is plainly off. Article 19 argues that super injunctions are a form of prior censorship that is not permitted under international human rights law - including permitted limits to Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights.

It will be interesting to see what will happen now. I suspect that the day of the superinjunction is at an end, and the British courts, if they do not accept that, will find themselves increasingly in an international legal ghetto, as other legislatures take action to prevent their enforcement elsewhere.

As with libel tourism, the superinjunction seem a peculiarly British occurrence - I have not found them elsewhere - which suggests that they are vehicles especially designed by UK lawyers to sell to rich clients, and where the ultimate aim of the law - to provide justice within society - has been perverted by the desire to make money. As a consequence, the basic privacy of everyone has been eroded as a result of the greed of a few.


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