I imagine just about all of the people who read BrooWaha believe in free speech and a free press, just as they believe in the right of individuals to protect their privacy. But what happens when the two things come into conflict, when the public’s right to know stands against an individual’s desire to prevent it from knowing? Well, in England if you are rich enough, famous enough and influential enough you can apply to the courts for something called a ‘super-injunction.’
Perhaps some of you who are not English have heard of these infamous legal devices? If so it’s likely to be as a result of the attempt by Ryan Giggs, a footballer who plays for Manchester United, to prevent the press reporting that he was having an extra-marital affair. A super-injunction not only stops the press from reporting, it prevents it from reporting that it has been prevented. In other words it’s a gagging order of the most complete kind.
In the case of Giggs the whole thing was blown open by the anarchy of Twitter, where thousands of people, beyond the reach of the English courts, were happily revealing the identity of the offender, making a mockery of him and an ass of the law. In resorting to a super-injunction Giggs amplified a not very important story out of all proportion, one that otherwise would have come and gone in a matter of days. Now it has merged into a much wider debate over the nature of privacy and freedom.
Personally I could not care less about the sexual exploits of Giggs or any other celebrity where there is no public interest element involved, where it’s all so much ephemera and tittle-tattle. But the super-injunction is a blunt weapon that can be used, and has been used, to cast a blanket of night and fog over matters of genuine public interest, in a way that is not compatible with a free press and a free society.
There was an infamous case a few years ago concerning a company called Trafigura, which deliberately dumped toxic waste off the Ivory Coast in Africa. Thousands of local people were effected, a number dying in consequence of the resulting pollution. The company originally claimed that the waste was non-toxic, knowing full-well that it was. Eventually, after much stalling, it agreed to pay compensation to over thirty-one thousand people.
Prior to this, in an attempt at news management, the company employed Carter-Ruck, a London legal firm specialising in the law of liable. To prevent the Guardian newspaper publishing details, the lawyers applied for and were granted one of these super-injunctions, the law not being done or seen to be done, but the law in secret preventing the reporting of a secret. Lost? Yes, I understand; not even Franz Kafka could make this up.
Carter-Ruck also turned its guns on Private Eye, a satirical magazine published in London, in a similar attempt at gagging. That’s when the whole things started to become more than ridiculous, gagging orders followed by farcical threats, even so far as Parliament. Ever since Private Eye has been engaged in its own guerrilla war with Carter-Ruck, calling them…well, I don’t think I need to say, do I?
The whole thing is such a mess, this conflict of human rights and public rights, that even David Cameron, the British Prime Minister, has said that the position is “unsustainable.” British judges, never known for their public sensitivity, are now more isolated and out of touch than ever, looking increasingly foolish in their high-handed interpretation of the law, in their willingness to stop the flow of information. Now Parliament itself is looking into the mess of English privacy laws, which can be used and abused in such a cavalier fashion.