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Who do these Super-Injunctions actually protect ??

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There has been a lot of hype recently surrounding what is referred to as ‘The Super-Injunction’ in Britain. A Super-Injunction is the result of a private sitting of the court where the case, the names of the parties and the terms of the injunction itself are kept secret except for those who are present in court. The Super-Injunction forms its legal basis from the UK’s Human Rights Act, 1998 and in effect is a legal gagging order which both prevents the media from reporting the details of a story and also restrains the media from even mentioning the existence of the injunction itself. The Super Injunction is being used by celebrities and sport stars to protect their names from being published in the media regarding their so-called private lives. Big Brother star Imogen Thomas was recently ‘named and shamed’ in the media for having an affair with a married footballer who could not be named as he had gone to court and was granted an injunction restraining the newspapers and media outlets from naming him. Thomas claimed that she could not afford to fund a high-priced legal team to obtain her the same protection. The media therefore could still print the story naming Thomas but could not name the married adulterer.

A full-page picture of Ryan Giggs with only his eyes blocked with a black strip appeared on the front page the Scottish Sunday Herald on 22 May 2011 and stated “Everyone knows that this is the footballer accused of using the courts to keep allegations of a sexual affair secret but we weren’t supposed to tell you about that…”. The publication of the Ryan Giggs photograph in the Sunday newspaper, the naming of the footballer on Twitter by some 70,000 Twitter users and his naming by Liberal Democrat MP John Hemming under Parliamentary privilege made Ryan Giggs infidelities the world’s worst kept secret.

A recent Twitter user has brought the effectiveness of the Super-Injunction into question, in what has been described as the “Spycatcher moment” of the internet era, by attracting nearly 55,000 followers to a list of celebrities which it implied were the subject of these Super-Injunctions. The Irish Independent states that “the frenzy of activity on the micro-blogging site yesterday makes the Super-Injunctions as ineffective as the ban placed on publication of the autobiography of the MI5 officer Peter Wright in the mid-1980s. The ban on Spycatcher was lifted in 1988 when the Law Lords realised that overseas publication of the book made a gagging restriction pointless.”

Political activist Jemima Khan, who was wrongly included on the list, yesterday took to her Twitter page, which has more than 60,000 followers, to deny allegations that she was having an affair with Top Gear presenter Jeremy Clarkson. Ms Khan is said to have had dinner with Clarkson and his wife the night before allegations emerged that the two were engaged in an extra-marital affair, allegations which were aired via the media site Twitter. Ms Khan, an ex-girlfriend of Hollywood actor Hugh Grant, was accused of going to court to gain such an injunction to prevent the media from publishing the reports, an accusation which is denied by all parties. Ms Khan tweeted on the morning of May 10th that “I’ve woken up trapped in a bloody nightmare” and assured her followers that the allegations were “untrue and upsetting”.

Similarly, presenter Gabby Logan has too been accused of having an extra-marital affair, an allegation which has been strenuously denied by all parties involved. Ms Logan, who is married to rugby union star Kenny Logan, was falsely accused of having an affair with footballer Alan Shearer; a story which came to light after a Judge had granted an injunction regarding another TV personality. Ms Logan was said to be devastated by the accusations and was forced to publicly deny the affair with the Daily Mail quoting Ms Logan as saying that she was a “faithful wife” and was found such allegations both “devastating and hurtful”.

Super-injunctions are rarely overturned, however, the High Court last year overturned a Super-Injunction preventing newspapers publishing allegations that John Terry, the Former England Captain, had an affair with Vanessa Perroncel, an ex-girlfriend of former team-mate Wayne Bridge. Perroncel has repeatedly denied allegations that she had an affair with the married England footballer who had obtained a Super-Injunction. However, in January 2010, a High Court judge removed the injunction on the grounds that freedom to discuss moral issues was vital to society and because the reason may have been that Terry may have been trying to protect his commercial sponsorships. Although the French model insisted she was just ‘friends’ with Terry, her ex-partner Bridge quit the England Team and refused to shake his former teammate’s hand during a game at Stamford Bridge in February last year. Another recent example is when the Royal Bank of Scotland banker Sir Fred Goodwin won a secret gagging order preventing his former occupation being revealed but the existence of the Super-Injunction was disclosed recently in the House of Commons. In 2009, the oil traders Trafigura and solicitors Carter-Ruck were granted an injunction on the publication of the Minton Report into the alleged dumping of toxic waste in the Ivory Coast. They then obtained a secret injunction preventing the media from reporting a parliamentary question about press freedom. Only hours before Trafigura was to be challenged in the High Court, the firm dropped its claim that to report Parliament would have amounted to contempt of court.

Former prostitute Helen Wood was recently prevented from selling a story naming a client who is a married Hollywood actor. Wood, who was used by the well-known actor whose name is protected by a Super-Injunction, has attacked his ‘fantastic family man’ persona. The married star took out an injunction to prevent the public discovering he had paid a prostitute £195 for sex. Wood counts England footballer Wayne Rooney among her other former famous clients, said she has found it increasingly difficult to keep the actor’s name a secret. Her rendezvous with Wayne Rooney and another call girl, Jennifer Thompson, before England’s World Cup campaign last summer became well-known after a judge lifted a ban on naming her. Wood has admitted that she was paid ‘more than £15,000’ by a newspaper for her story. Asked by the Daily Mail if she thought the revelations on the Internet made a mockery of the law on injunctions, she said: ‘Yes I do, actually, because Twitter is a social website, it is a network, isn’t it?

The UK Telegraph reported that on the 25th May 2011 “a senior executive from Twitter yesterday admitted for the first time that the website would turn over information to authorities if it was “legally required” to do so. Experts had previously assumed that people who breached gagging orders on Twitter were protected from legal reprisals because the website is outside the jurisdiction of British Courts. The admission came after Dominic Grieve, the Attorney General, warned earlier this week that people who breached injunctions online were in for a “rude shock”. He said: “It is quite clear, and has been clear for some time in a number of different spheres, that the enforceability of Court Orders and Injunctions when the Internet exists into which information can be rapidly posted, that presents a challenge. “But that doesn’t necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information which may in some circumstances be enormously damaging to vulnerable people or indeed, in some cases, be the peddling of lies.”  Further, earlier this month the English High Court gave the green light for Louis Bacon, a billionaire US hedge fund manager to force Wikipedia, the online encyclopedia, to disclose the identities of online commentators who allegedly defamed him.

With the online media outlets and social networking sites dominating the Internet traffic on a daily basis, has the Super-Injunction any real chance of success? Since they are so expensive to obtain do they just protect the rich? Does the law just protect those who have engaged in adulterous relationships while those who have been faithful continue to be subjected and are forced to defend unsubstantiated and hurtful online allegations with no consequences for those who have made up such rumours? Will the admission by Twitter that they will engage with and turn over information to the authorities about users when legally obligated to do so really have any impact or will this just encourage individuals to set up accounts with false email addresses with fake names and set them up in Internet Cafes where they are virtually untraceable? Does the Super Injunction impede on freedom of expression and deny natural justice? An individual’s right to privacy as against ones freedom of expression is an argument that will inevitably go on and on but, until that time presents itself one must ask; who do these Super-Injunctions actually protect and taking Ryan Giggs as an example, what is the point in obtaining one??

LegalEagleStar  Tuesday , 31st. May , 2011

San Antonio, Texas

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