The Independent: “The law is a farce”

The Independent declares on its front page today that “the law is a farce”, after one particular super-injunction has spiralled out of control.

Premier League Footballer XXXX XXXXX, who can only be legally identified as “CTB”, was granted the super-injunction after claims of an affair with former Big Brother star Imogen Thomas were about to be published by The Sun.

XXXXX‘ name was revealed on the social networking website Twitter, along with those of five others believed to have taken out similar super-injunctions, and within hours his name had been seen by thousands of people around the world. This number has since jumped to hundreds of thousands, if not millions, after it was retweeted by celebrities including XXXX XXXXXX.

XXXXX, though, could not accept that the world now knew about his injunction and alleged affair – and that, thus, he should just come clean. Instead, he launched legal action against Twitter, Inc “and persons unknown” in an attempt to bring about contempt of court claims against them.

In the court order, Eady J extraordinarily asserted his authority by stating that the injunction was effective against “the whole world”. Unfortunately for XXXXX, though, newspapers in America and on the continent have published the name.

And, yesterday, the Sunday Herald in Scotland used his face as their cover picture with simply a black bar and the word “CENSORED” covering his eyes. It is impossible to suggest, now, that it is worthwhile keeping the order in place.

The Independent agrees. Its front page today (pictured) has a blurb stating:

“Journalist and TV personality XXXXXXXXXX is targeted by lawyers for tweeting the identity of super-injunction footballer XXXXXXXXXX.

“TV star XXXXXXXXXX, pop singer XXXXXXXXXX, author XXXXXXXXXX and comedian XXXXXXXXXX have also used Twitter to name XXXXXXXXXX, another player with a gagging order.

“And now a Scottish paper, XXXXXXXXXX, has put a picture of this footballer on its front page.

The law is so draconian that none of the celebrities who retweeted the comments can be named, at least not in England and Wales. Every other jurisdiction, despite Eady J’s claims, seems confident in its immunity from the super-injunction. It is perhaps for this reason that XXXXXXXXX blogger XXXXX XXXXXX who publishes the blog XXXXXXXXXXXXXXX in XXXXX has also named the player on the blog.

XXXX XXXXX‘ case could be considered a new media Spycatcher.

In 1985, a former MI5 employee and Assistant Director sought to print a book detailing his work trying to find a Soviet spy in MI5. It was immediately injuncted by the English courts. However, it was legally available in every other jurisdiction in the world – including Scotland. People could then purchase the book in any other jurisdiction and legally bringing it back into England – making a mockery of the legal process which attempted to ban it.

It took two years for that to be recognised by a High Court judge, who lifted the ban, but it was re-implemented by the Law Lords shortly after. The Economist, which had sought to publish a review of the book in its magazine, instead printed a blank page with the following words:

“In all but one country, our readers have on this page a review of ‘Spycatcher,’ a book by an ex-M.I.5 man, Peter Wright. The exception is Britain, where the book, and comment on it, have been banned. For our 420,000 readers there, this page is blank – and the law is an ass.”

The Law Lords decided that the law, in fact, was an ass the following year, when it decided that the book contained no secrets because it was freely available and cleared the book for sale in England. The European Court of Human Rights held in 1991 that the British government had breached the European Convention of Human Rights in gagging its newspapers (or, at least, those in England).

The judiciary seems not to have caught up with the new media, though. Technically, they are teetering on the edge of suing an estimated 30,000 Twitter users who have spread the names around the Internet. They are going to ask the Attorney General, Dominic Grieve QC, to commence contempt of court proceedings against journalist XXXX XXXXXX, whilst he is already looking into whether the Sunday Herald can face similar action. The latter, though, depends on its availability and distribution in England and Wales.

Neither could the judiciary silence thousands of XXXXXXXXX fans, who chanted at XXXXX “you’re not secret any more” when their team played XXXXXXXXXX XXXXXX today.

Neither XXXX XXXXX, nor Parliament, and nor the judiciary will see the end of this farce any time soon. Today, several papers are again covering the story on their front pages, and The Sun have listed some of the estimated 80 super-injunctions covering celebrities:

“CTB: Premier League footballer who had affair with Big Brother Star Imogen Thomas

“ETK: Married actor had affair with a married colleague, who was sacked after his wife found out

“AMM v HXW: TV star is accused of having sex with his ex-wife after remarrying

“NEJ: Famous actor involved with Rooney prostitute Helen Wood

“OPQ v BJM & CJM: Married TV star prevents “intimate photographs & information” being sold to newspaper

“CDE & FGH v LMN: TV star is alleged to have had phone, Twitter and text sex with a single mother

“MJN: Married Premier League footballer had affair with 18-year old model Kimberley West

“DFT v TFD: A high-profile public figure is being blackmailed by alleged mistress

“ASG v GSA: A famous married dad is though to have had an affair with a girl he met in a nightclub”

To consider that an injunction is still sustainable is absurd. In the Spycatcher case, it took three years for the judiciary to accept that what was being kept secret was, in fact, no longer secret. With the age of the Internet, they simply cannot take so long to reach the same conclusion with XXXX XXXXX.

The law of privacy has been twisted by the courts to protect adulterous celebrities from embarrassment without Parliament having a proper say. Indeed, now the Master of the Rolls is suggesting that a centuries-old law saying that proceedings in Parliament can be freely reported may not, in fact, protect the media from contempt of court actions.

The law has descended into farce, with nations across the world mocking it. As media lawyer Mark Stephens told The Sun, it is “likely that quite soon the British courts will accept that we can no longer sustain the injunction”.

For the media and thousands of people across the country, though, that cannot come soon enough.

Although I know the identity of the XXXXXXXXXX XXXXXX player involved in this case, I doubt that the Solicitors Regulation Authority, of which I am now a student member, would appreciate me revealing his name and breaching a court order.

However, such is the farce of the law, you need do little more than type XXXX XXXXX into Google before it suggests additional search terms including “injunction”, “super injunction”, “Imogen” and “suing Twitter”.