You’ll have to forgive me this morning, for I am an addled, befuddled little burd. And it’s all down to the law.
Let’s take the super-injunction stushie. I’ve already nailed my colours to the mast. Yes, I do believe that the reams of stop papers served on media outlets and others preventing the disclosure of salacious details of the private lives of rich men (mainly) is distasteful. It is also evident of how the wealthy will always be able to buy protection for themselves at the expense of others. Frankly, it ain’t what a system of justice was set up to do.
Yet, I found myself on Twitter the other evening defending the one that has been shopped around all over that medium and now, every newspaper in the land, following the Sunday Herald’s brave stance with its front cover. I found myself defending it because he was probably entitled to his injunction. For everyone to make this case the cause celebre of all that is wrong with the system is misguided. There is no public interest here; this particular footballer has always been an intensely private individual; the court papers suggest less than fragrant behaviour by the woman involved who appears to have colluded with the media to try and create a story worthy of their attention; and he has never created a public persona based on his private personage. I couldn’t even tell you how many children he has or what his wife’s name is, such is the low profile he has given his family throughout his career.
This is entirely the wrong case upon which to demonstrate that the law is an ass and to try to tease out the balance between article 10 (the right to freedom of expression) and article 8 (the right to private and family life). There are other super-injunction cases, such as the Fred Goodwin one, which will have much more distinct public interest elements, where article 10 does and must over-ride article 8, and seem much more within the bounds of a wealthy man buying his privacy with the willing co-operation of the justice system, ignoring everyone else’s rights and the public interest in the process.  If we were actually serious about challenging the establishment rather than simply being titillated, of using these injunctions to create better law, we would have seized upon different cases, surely. As it is, we will now get more law that is not necessarily better law.
The problem for everyone, as the outed case demonstrates, is that it is incredibly difficult to contain information, thanks to the advent of social media and networking sites like Twitter. But never fear, here comes the First Minister, riding to everyone’s rescue, who has promised to “clamp down effectively on bigotry peddled online” and whose Government intends to make “such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail”.
Such a move has been welcomed by Paul McBride QC but also questioned in his usual forensic manner by Lallands Peat Worrier.
I do hope the Scottish Government’s law officers have been watching the super-injunction stushie closely. A threat by the outed footballer’s lawyers issued to Twitterland resulted in thousands more naming the footballer and spreading the details.  I doubt that folk would as gleefully seize on retweeting noxious sectarian bile but you never know. Such is our willingness – apparently – to defend our right to freely express what we want to, without real or proper consideration of the consequences.
And therein lies one of two problems for the Scottish Government. First, neither current UK equality nor human rights legislation intends to create a hierarchy of rights and protections. Indeed, the Single Equality Act attempted to remove the hierarchies of rights that existed amongst different minority groups. This underpinning belief that everyone is equal and should be treated equally was used to try to persuade the Scottish Parliament to create a series of aggravated offences – so-called hate crimes – that treated all prejudice and malice shown to all minority groups the same. The then Justice Minister, Cathy Jamieson, bottled it and we got hate crimes on the ground of religion and race and had to wait for Patrick Harvie’s private members’ bill to protect gay, lesbian and transgendered, and disabled people in the same way.
Expect when the new sectarianism bill to reach Parliament for the same arguments to be made. If it is wrong to use internet chat rooms to peddle hate on the grounds of someone’s religious beliefs (or rather affiliation to a particular football team – and this is where the burd becomes very confused – is it just the Old Firm that is now to be viewed effectively as an equality strand?) then it is wrong to do so on the grounds of someone’s gender, sexuality or sexual orientation, or different ability. Indeed, it is arguable that if it is an offence for Old Firm fans to peddle bile, then that must also apply to other football fans and further, to supporters of different political parties. Which might cause some of the worst offenders of the cyber spats between Labour and the SNP pause for thought.
At heart is my unease that by treating the current law as an ass, we may end up with less liberty not more, caused by our inability to police ourselves, to behave with any sense of decorum, of our failure to work out what is right and what is wrong and to insist upon our own individual rights trumping anyone else’s. By our own failings, we will end up living in a more illiberal society where our actions, thoughts and expressions in all media, are increasingly controlled and policed by the state. Because we do not know anymore where to draw the line and where not to cross it, the irony is that we, the little people will find our rights increasingly constrained and limited, while the real perpetrators – the rich who buy their way to justice and the peddlers of hate who have no respect for themselves or fellow citizens – will have the luxury of the law to protect their rights.
#1 by jim jepps on May 24, 2011 - 11:27 am
Good post, but I think youu’re wrong to say that this is the wrong case to highlight the law. It’s exactly the right case to show why the tabloid press want the law changed – so they can peddle filth to sell units without restriction – that’s in no public interest.
I hope this whole affair turns into a debate on the corrupting power of the press frankly. It’s not the judges we should be hanging but the Murdocks of the world.
#2 by James on May 24, 2011 - 12:02 pm
See also the argument that this is Twitter versus the fuddy-duddies. How did the injunction-breaking content get to Twitter? Via journalists.
#3 by Scott on May 24, 2011 - 4:56 pm
It is hard to establish this. Although what a search reveals is that one injunction was directly breached by one journalist who tweeted merrily about a sex scandal involving a player just after the newspaper group that employed him was enjoined in an injunction. This may explain why legal action has been threatened in that case.
#4 by douglas clark on May 24, 2011 - 11:51 am
I don’t know much about this particular case, but a super injunction was raised by Trafigura to stop the press from reporting on their alleged dumping of toxic waste in the Ivory Coast. Whilst it was quickly overturned, it seems that in principle, it should never have become public knowledge in the first place. Because the litigant isn’t revealed.
It seems clear enough to me that a baby step on improving this situation would be to immediately remove the right to serve a super injunction by any corporate body, or anyone associated with it.
But there is another thread to this. What of Imogen Thomas? It is her freedom of speech that is being suppressed. Indeed she was hung out to dry by the legal process. Because she couldn’t afford a super injunction of her own perhaps? (As an aside, I wasn’t sure what her second name was – well it’s first on Google Search right now).
There has to be a balance between privacy and accountability. But super injunctions are a step too far.
#5 by CassiusClaymore on May 24, 2011 - 11:52 am
Speaking as a lawyer….the last thing we need here is more law. Every time a law is passed, difficulties are created rather than solved due to the inconsistencies that inevitably result from one pressure group being more effective than the next and managing to get their pet hates legislated against.
For example, it is now an offence to make sectarian remarks but not, to take a topical example, to make pro-terrorist remarks. The result is that anti-Catholic or anti-Irish chanting from Rangers fans is criminalised, but pro-terrorist chanting from Celtic fans is not. Most people would regard the lionising of the IRA as highly offensive, as is anti-Irishness/anti-Catholicism. Unfortunately, however, only one of these pieces of reprehensible behaviour is criminalised – allowing the Celtic fans to undeservedly take the moral high ground.
I would far rather that we took a sticks and stones approach and protect freedom of speech, subject to the criminal law. The only alternative is to criminalise all varieties of offensiveness, which is impractical and involves the making of difficult judgments. We already have the crime of breach of the peace – that’s perfectly sufficient to punish those who put others into a state of fear and alarm by their words or actions. Why not properly enforce the existing criminal law, rather than just pointlessly create new crimes for a sugar rush of positive headlines? This is what really frustrates me about politicians.
As for privacy, celebs need to learn that they live on publicity and can’t complain when the boot’s on the other foot. If something’s true, the press should be allowed to print it – subject to the long-standing and perfectly sensible exceptions concerning child protection and national security.
CC
#6 by Indy on May 24, 2011 - 1:36 pm
I think the argument that celebs live on publicity and therefore can’t complain when they get stalked by tabloid journalists is a piece of absolute nonsense.
For a start “celebs” covers a multitude of individuals from the supremely talented to the completely talentless. If you are talking about Katie Price fair enough, She has made her career out of selling her personal life to the tabloids. That is in fact what she does for a living,
But In this case we are talking about someone who has come to prominence because he is a football player. Whether or not he is a talented football player I don’t know because I don’t watch football but he is not someone who has been in the media spotlight a great deal or touted his wife around like a trophy. He has by all accounts tried to keep his private life private.
The argument is presumably that because he has achieved fame and fortune as a footballer he is not entitled to have a private life and we are entitled tto know all his personal business. “The public” are interested in it therefore it is in the public interest to basically stalk the guy.
To me that is just so preposterous I don’t see how anyone can make that argument without bursting out laughing.
Seriously, you have no more right to know about his sex life than I do to know about yours.
#7 by AJB on May 24, 2011 - 11:57 am
Neither Giggs nor Sir Fred had superinjunctions. They were just simple injunctions. The difference being that under a superinjunction the press can’t even mention there is an injunction in existence. Just a small point, but I’m sure we all love the precision of legalease over the media’s love of the word ‘super’….
#8 by Gavin Hamilton on May 24, 2011 - 1:20 pm
I think you make an enormously important point that we have to be careful here of the the law of unintended consequences and don’t find ourself clamping down on freedom of speech and the exchange of views and of emotions while those who don’t know where to draw the line or are rich enough to use the the law to protect their interests are ‘protected’ by the law.
I also take the point that maybe the last thing we need here is more law.
And finally the excellent point that Goodwin and GIggs were the subject of injunctions not super-injunctions.
So I am actually getting rather lost about what is being argued about here.
#9 by Tony on May 24, 2011 - 2:53 pm
One you might find offensive but one is a criminal offence that has been flaunted my whole life. I find lots of things offensive, many people view the IRA (myself included) as certainly no worse than the neo-imperialist actions of the british state and her legal and illegal forces in Ireland and lately elswhere. In fact there is no comparison really, they are two different things and should be judged and dealt with as such. I agree that we don’t need new laws, just enforce the current ones and extend such to the internet, not to inhibit legitimate free speech but to curb hate speech and songs.
Your comment actually sums up what is wrong with how we have went about dealing with anti-Catholicism in Scotland, the desire to seek a comparison where no comparison exists which actually only provides cover for the actual crime being commited in front of us.
I also agree with the comments above on how the tabloid media have been manipulating the whole carry on with super injunctions.
#10 by David Gray on May 24, 2011 - 4:13 pm
Thought- provoking article. I agree that any new law will not necessarily make better law. The issue is really that of enforcing the law, given the increasing difficulty presented by internet.
From your article, I get the impression that you think it is important to clarify what privacy is, or more importantly, what counts as public interest. For the most part, our rights in the UK are not positively asserted, by which I mean they are not protected by a bill of rights. In fact, arguably the Human Rights Act is one of the few that does positively assert what our rights are. I do wonder whether this will increase calls from Tory backbenchers for a British bill of rights.
Furthermore, it is questionable that so many of these privacy claims are heard by the same judges, in particular Judge Eady, as was pointed out in May 2009 in a deposition by Ian Hislop to the Culture Committee.
#11 by douglas clark on May 24, 2011 - 4:34 pm
AJB @ 6
Are you sure it’s not a super injunction?
Even some lawyers are using the word loosely if that is the case:
http://tinyurl.com/43vxbpc
#12 by Scott on May 24, 2011 - 4:53 pm
It is definitely not a superinjunction. But trying to battle with bloggers, tweeters, and newspapers who seem intent on using the expression either through ignorance or because they are wilfully trying to mislead seems like a losing battle.
The case of CTB was an anonymised injunction not a super injunction. That is why the judgment in the case was on the internet for anyone who cared to read to read. If it was a superinjunction it wouldn’t have been there because the existence of the injunction would itself have been subject to an injunction.
As for lawyers using the word loosely – you link to a post by a Scottish lawyer who advised a different Scottish newspaper to the Sunday Herald that they were somehow bound by an injunction granted by a court in a foreign system despite there being no equivalent interim interdict in Scotland under the Civil Jurisdiction and Judgments Act 1982, s 27. Forgive me if I treat his comments on English law (never mind Scots law) with a pinch of salt.
#13 by The Burd on May 24, 2011 - 6:35 pm
Scott you are right – I hang my head in shame. I was rushing it and couldn’t find a link to a very good blog that set out the difference and also some of the issues – still looking for it. Meanwhile here is the link to the actual court papers which may help some http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html
#14 by CassiusClaymore on May 24, 2011 - 4:58 pm
Indy
I’ve got no interest in the private lives of celebs or sportsmen, and I think that the tabloid press exposes of their wrongdoings are typically pretty distasteful. But you have to choose between privacy and the right to free speech – and I firmly prefer the latter.
One thing is clear – you can’t have both. Privacy laws will only be abused by those who can afford it.
CC
#15 by Indy on May 25, 2011 - 6:30 pm
Why do you have to choose between privacy and the right to free speech?
I can see an argument of course if it is suggested that someone’s sexual behaviour led them to behave improperly in a workplace situation or if someone has broken the law i.e. used a prostitute. But in those cases there is clear wrong doing.
Where there is no wrong doing I don’t see why free speech or the public’s right to know comes into it. Adultery is not a crime. People may disapprove of it but it is not actually a punishable offence, so why does anyone require the freedom to write about it and name the people involved?
#16 by douglas clark on May 24, 2011 - 5:17 pm
Scott @ 12,
Cheers. I didn’t even know there was such a thing as an anonymised injunction. It certainly clears up some of the questions I would otherwise have had. So, the hierarchy is injunction, anonymised injunction and super-injunction then?
#17 by The Burd on May 24, 2011 - 7:14 pm
Meeja Law has links to the papers in CTB case and also definitions of injunctions http://meejalaw.com/2011/05/23/super-injunctions-the-documents/
#18 by douglas clark on May 24, 2011 - 10:08 pm
Thanks for the link.
#19 by CassiusClaymore on May 24, 2011 - 5:29 pm
Tony
The IRA routinely and indiscriminately killed innocent adults and children of all religions and none. If you don’t find the continued lionising of them by the Celtic support unacceptable, that’s sad to hear.
From my (neutral) perspective, this Old Firm stuff is now international media news and the sight of neds in white shellsuits banging on about the IRA (which, incidentally, they typically know little or nothing about) has to qualify as a national embarrassment. It’s just humiliating for us as a nation. But I would’t seek to criminalise these people, provided that they’re not causing fear or alarm (ie committing breach of the peace) – I’d rather educate them.
I feel the same way about other bigots too, whether they be ageist, sexist, racist, homophobic, sectarian, fattist, xenophobic, anti-ginger, whatever. I think it’s very dangerous to criminalise one idiot’s prejudices, but not the next idiot’s prejudices. Who gets to decide? Is it the minority with the best parliamentary lobbyists? How unpleasant/offensive does a view have to be before expressing it becomes criminal? Can you really pick and choose, as you seem to be advocating?
This is the problem with restricting free speech. How far do you go?
CC
#20 by Tony on May 24, 2011 - 8:15 pm
Cassius
>>The IRA routinely and indiscriminately killed innocent adults and children of all religions and none. If you don’t find the continued lionising of them by the Celtic support unacceptable, that’s sad to hear.<>From my (neutral) perspective, this Old Firm stuff is now international media news and the sight of neds in white shellsuits banging on about the IRA (which, incidentally, they typically know little or nothing about) has to qualify as a national embarrassment.<<
Not sure if your pejorative language about Celtic fans and the conflation of their political views with atavistic anti-Catholic bigots gives you the right to call yourself neutral really Cassius. However I do agree that many have a very shallow knowledge of the subject at hand, and some are little more than green versions of orangemen, though I am glad to say they are gey few and matter little.
My original comments directed at you highlighted what I believe to be the default position in Scotland, which was reflected in your comments. In that there is an overwhelming desire to seek balance where none exists, your conflation of Celtic fans with their views and anti-Catholicism is not an apt comparison, and in no way allows you to generically class celtic fans as bigots as you so freely do, quite insultingly really.
We have a sad state of affairs that is tolerated with hardly a whimper in Scotland whereby the likes of the Orange order are allowed to abuse the HRA, and the Sherrifs underline this hierarchy of competing rights time after time to the detriment of ordinary people in general but specifically to te minority catholic population who have to suffer what are really just triumphalist coat trailing getitrightupye sessions.
I'm all for tolerating the intolerant……………………but only so far! Although we could always concentrate on making sure Celtic fans don't sing certain songs.
#21 by Tony on May 24, 2011 - 8:23 pm
Ach keek tried a different approach and that never worked either.
>>The IRA routinely and indiscriminately killed innocent adults and children of all religions and none. If you don’t find the continued lionising of them by the Celtic support unacceptable, that’s sad to hear.<<
Actually they didn't routinely do that. On the occassions that they did it was usually reckless carelessness rather than wicked intent, and for that thet stand rightly condemned. I passed no comments regarding the Celtic fans singing of republican songs. That debate is for another day and certainly not as a pre-requisite or in conjunction with the stamping out of the casual anti-Catholicism that still lingers in so much of scottish society. I have no problems with British wars and dead being remembered in an appropriate way, why is it that others don't enjoy that same right. The actions of the legal Btiish security forces were at times worse than the IRA and certainly more numerous. And that is even before we consider the actions of the illegal militia's who were led at various times by British agents.
#22 by Scott on May 24, 2011 - 9:14 pm
On Goodwin I should note – to be fair to Sir Fred – the newspaper involved (nor any other newspaper that could have intervened) did not argue that publication of their story was in the public interest until the most recent hearing on the case (after the anonymity was dropped). At that case the judge pointed out that as they’d not notified Sir Fred, or the anonymous woman (Ms X) with whom he is alleged to have had a relationship, the argument could not be presented without giving a chance to Sir Fred and Ms X to prepare a response. We await further developments there.
But the reality is that even in cases where there is public interest the media (collectively given that any of them can intervene given the third party effect of the injunctions in England) have not argued it. What we should be asking of them, is why are they not arguing it in the cases that would potentially merit it?