As most people probably know by now, the Sunday Herald opted for an extraordinary front page yesterday, showing the barely redacted face of the football personality at the centre of the superinjunction storm. More pertinently from a legal standpoint, the paper names the player on its inside pages, confident that its Scottish-only circulation will mean that it hasn’t broken a law that applies only in England and Wales.
While many applaud the bravery and determination of the Herald of being a harbinger of truth, was it a wise move?
I’m no lawyer so I guess I should be satisfied that Scotland’s favourite legal expert, not to mention Paul McBride QC, believe that the Sunday Herald has not done anything illegal but, nonetheless, here in London I saw that front page via Twitter so either the Scottish paper or the US social media company have broken the law. Furthermore, does it suggest to readers, bloggers and twitterers that they could and should also fly the flag of free speech and also name the player? Getting seduced into thinking you’re fighting the good fight is risky when you don’t have a legal budget.
The newspaper is also picking a rather odd battle here. This story is about who bonked who, public interest is minimal and the whole sorry tale should in theory only be good for the grubby, loathsome red-tops. The Sunday Herald will have boosted its circulation primarily because non-Twitterers will want to know who slept with Imogen Thomas, a factoid that wouldn’t have been so interesting if she hadn’t appeared in Big Brother. See how lame this all is? Salaciousness has pricked our curiosity, not for the first time and it certainly won’t be the last.
And yet, I am a hypocrite of the highest order in writing the above. I wouldn’t touch the Sun with a bargepole but I was on Twitter like a shot, quickly finding out who all the footballers were and which journalists are possibly facing charges this weekend. So, the most fascinating aspect of this whole issue for me is the goading that superinjunctions seem to carry. Ordinarily we wouldn’t give two hoots about these stories but once we learn that a rich person has paid money to stop us knowing something, we’re all over it like a rash. Psychologists may be able to explain it but it is a quite bizarre phenomenon. Who cares who Fred Goodwin had an affair with, superinjunction or not? Well, frustratingly, I do and yet I don’t, all at the same time.
And to further add to my hypocrisy, despite dismissing this as the domain of red-tops, I was right proud of the Sunday Herald’s stance yesterday. It was State of Play, it was West Wing and it was what most of us want to see from a free press – journalists zeroing in on problems within our country and presenting the problem in an eye-catching but intelligent, logical manner. Clearly, on some level, this story does actually run deeper than tabloid bonking.
The bottom line is though, the law is the law. Pundits have lined up all week to proclaim how unsustainable these superinjunctions are, and they are correct, but none of them that I heard made the point that, for these specific cases, a judge has made this decree and we should all just accept it. Arguing against the general principle of a legal system for the rich and a legal system for the rest of us is a separate and worthy objective but, in the meantime, we all have to accept the law. Individual users of Napster were targetted by recording companies back in the day and made to pay for their illegal behaviour, a move that caused genuine fear amongst the users of illegal music downloading. If I was this footballer’s lawyer, I would instruct the same zero tolerance and go after @billybob1234 and @suemaclfoggerty3234 for breaking the superinjunction, not just the journalists.
And should that “all” extend to the Sunday Herald? I suspect we’ll find out soon and, hopefully, Scotland will back the Sunday Herald by buying it more often from here on in too. Yesterday was a timely reminder of a newspaper’s important place in a nation’s structure.
#1 by douglasmclellan on May 23, 2011 - 1:10 pm
I dont get your reasoning that because you saw it in London it means the law was broken in England & Wales.
The Spycatcher book was published in Australia despite it being banned in England & Wales (it was also available in Scotland as well). If someone legally bought it in Australia, gave you a phone call and read it to you then would the law have been broken then? Or would have BT have broken the law for allowing the telephone call to take place, which is what you are accusing Twitter of here.
Your comparison of music file sharers and tweeters is also a bit hard to follow. It is illegal to share copyrighted files and there is a big mountain of case law to back that up. Beyond the first person tweeting the information (assuming that the injunction covered them in the first place – which is not clear) no-one else can be held liable. Its like someone saying something in a pub and then everyone else in the pub repeating it.
#2 by Jeff on May 23, 2011 - 1:36 pm
Thanks Douglas, plenty to think about in there.
I’m no lawyer of course but I guess if the US can have a law against accessing American Secret Service files and a British guy (Gary MacKinnon) does just that and still faces extradition, then in my little mind there is a risk that the Sunday Herald can somehow be liable from Scotland for a law in England and Wales. I hope not and I suspect less and less that they’ll get into trouble but I still think it was a risky/brave move.
My comparison of Napster and this case is, I still think, spot on. When people tweet they are publishing something, just the same as a newspaper but on a much smaller scale. Newspapers can’t print stories based on what they hear down the pub, they need sources, and I don’t see much difference between a journo being banned from publishing this footballer’s name linked to the issue at hand and a Tweeter doing it. Even if it’s not clear, it’s surely foolish to take the risk? What’s to be gained from it? Which is where I come back to this strange goading phenomenon we all seem attracted to.
#3 by douglasmclellan on May 23, 2011 - 2:02 pm
McKinnon is accused of breaking several laws in the US and faces extradition to the US to face those accusations there as that is where the crimes took place.
The Sunday Herald broke no laws in Scotland. Twitter broke no Californian law. Its as if, say Gaddafi was dead, Libya barred reporting of it but the BBC in Scotland still announced it in there website which was accessible from Libya. Could Libya take the BBC court in that case? I say no. You say it should be mindful that it could happen.
Are tweets publishing? Should they be treated the same as a newspaper publishing something? If yes, why?
#4 by Jeff on May 23, 2011 - 2:12 pm
I guess I don’t understand how you can argue that US law applies globally but English/Welsh law (or whatever it is) applies only to England & Wales. I of course don’t believe Gary McKinnon should be at threat from US authorities but the reality is that he is, so it’s surely reasonable to novate the same conclusions there to the Sunday Herald issue, at least speculatively.
I believe tweets are publishing because you are putting out into the public domain information or opinions on other people and you should be held accountable for what you write. Simple as that. A comment in the pub is lost forever, a comment online is permanent and can be heard, potentially, by millions.
#5 by douglasmclellan on May 23, 2011 - 2:37 pm
The US law doesnt apply globally. They are seeking his extradition for crimes committed there. Now, for extradition to work in this case there needs to be something called dual criminality – where the act was both a crime in the US and a crime in the UK/Scotland. McKinnon faces extradition because what he did was a crime here as well (thus the calls for him to be tried in the UK).
Although extradition clearly doesn’t apply here, the principle of two different legal systems with different laws does (or three if you include twitter in California).
I dont think that tweets are that different from carving something on a tree or writing something on a toilet cubicle wall.
#6 by Scott on May 23, 2011 - 2:43 pm
You are right on the publication issue. Each tweet is a publication beacuse they can (in open accounts) be read by the world.
#7 by Scott on May 23, 2011 - 4:48 pm
English law publication is based on the place where it is downloaded. Scots law (based on 2000 case which stands alone) is very similar.
#8 by Thomas Widmann on May 23, 2011 - 4:06 pm
Even if tweets are publishing, you need to decide where they’re published: Where the tweeter is, or where Twitter is. I suspect legally it’s the latter, which means the only thing the English courts can do is to shut off access to Twitter.
#9 by Robert Black on May 23, 2011 - 1:14 pm
There is no public interest in knowing which professional footballer slept with which reality TV celebrity. But there is a very clear public interest in underlining and reiterating the principle that the orders of an English court apply only against those over whom the English courts have, or can establish, jurisdiction. And this does not include the overwhelming majority of the population and business organisations of Scotland. The sooner that English courts, lawyers and celebrities come to appreciate this, the better. But, of course, the arrogance of the English judiciary is notorious, as is their ignorance of and contempt for the law of every other jurisdiction.
#10 by Scott on May 23, 2011 - 2:46 pm
I absolutely agree with you Professor Black. The nature of the orders is an example of legal imperialism.
I regret that the Herald chose this case (particularly given the very serious blackmail allegations within the judgment granting anonymity) but the principle that our legal system is independent – particularly when s 27 of the Civil Jurisdiction and Judgments Act (as interpreted) gives such a simple remedy for the claimant to obtain an interdict at the Court of Session – is well worth standing up for.
#11 by Tony on May 23, 2011 - 1:18 pm
It is important to note that the Herald reported the story as the player mentioned on twitter, an important distinction rather than outing him directly. Not that the distinction matters as nothing will come of it legally.
Noticed that Salmond was swotting some silly questions from English journo’s in Westminster today. Seems that many were unaware that we have a seperate legal system.
Oh dear!
#12 by Jeff on May 23, 2011 - 1:40 pm
Thanks Tony, being down in London, I’ve not even had a chance to read the article so, yeah, you’re right that that is an important consideration.
I can’t imagine many people down here realise there’s a separate Scots Law; to be fair, I don’t know when they would typically pick that info up!
#13 by Colin on May 23, 2011 - 1:56 pm
Which show was he doing that on? I’d love to have a listen/watch.
#14 by Tony on May 23, 2011 - 6:00 pm
It was on BBC 24 which cuto him as part of the ongoing story, he clearly couldn’t be bothered as he had bigger things to worry about. However as soon as it was put to him repeatedly that the *English* Attorney-general may intervene to impose the injnction, he gave the short informed lecture and ridiculed the idea that the A G would not know that he has no jurisdiction in Scotland. Info that the journo’s putting the questions to him clearly were unaware of.
As Jeff states in his reply to me above, yir ordinary Englishman would be unaware of this (as would perhaps yir ordinary Scot) but these were British political journalists. Yet another example of the writ of the British mind running no farther than Hadrian’s wall, and underscoring the England as Britain fact.
#15 by Allan on May 23, 2011 - 7:20 pm
I must have seen a seperate part of the News 24 cavelcade, as i saw a jorno quiz a so called law expert who did not mention “Interim Interdict” or knew the correct nationality of the Sunday Herald’s parent company (Newsquest I believe is an American company, not English).
#16 by Scott on May 23, 2011 - 2:47 pm
Absolutely true. The story was very cleverly legalled. It repeats no allegations, contains no kiss and tell element – purely the fact of the injunction, the twitter storm, and makes the point English injunctions don’t apply in Scotland (whatever Campbell Deane says in his various articles in The Scotsman/The Drum/The Firm/The Guardian &c says).
#17 by Tony on May 23, 2011 - 6:04 pm
Exactly Scott!
There has been widespread misreporting, every news outlet is reporting that the Herald named Giggsy as the fitba player who has the super injunction in question, when in fact they merely reported the twitter story.
#18 by Despairing on May 23, 2011 - 2:47 pm
Douglas’s argument was lost in the confusion that someone can be extradited from Britain for breaking US law but they’re safe in Scotland for breaking English law. I look forward to the editor of the Sunday Herald being extradited to London, and the ensuing broohaha!
Also, an observation: the Sunday Herald is usually buried in the centre of the display stand in WH Smith in Waverley station. Yesterday it had pride of place on one of the outer stands where it could more easily be seen. Did a staffer do that themselves, did the Sunday Herald specifically request it, or did they print more copies in anticipation? And incidentally, was I breaking the law yesterday when my copy ended up bandied around the messroom in Newcastle station, having been bought in Edinburgh?
And I can’t believe I actually used the word broohaha.
#19 by Kim on May 23, 2011 - 2:51 pm
Was this story really about who bonked who? Reading what was actually written in the paper, suggest that the reason for the injunctions was more to do with football personality worry about the effect his sponsorship deals that the news might have if it leaked out. He was worried about his money not his marriage.
If someone is taking money under false pretences, i.e. sponsorship based on a squeaky clean image, is it not in the public interest that the story get out? Whether this was so in this case, I don’t know, as I know little of the persons involved and care less, but I do care about the freedom of the press and free speech.
#20 by Indy on May 23, 2011 - 3:21 pm
No it is not in the public interest Kim. LOL.
If you are among those who get excited about tabloid tales of who is getting off with who just admit it. We live in a celebrity obsessed culture which has made such voyeurism seem increasingly normal.
C’est la vie. I may not like it but what really annoys me is people who make up high sounding nonsense to justify what is simple prurience.
#21 by Jeff on May 23, 2011 - 3:52 pm
I watch Made in Chelsea; I am not ashamed.
Ok, I am a little bit, but I do watch it.
#22 by Indy on May 23, 2011 - 5:03 pm
LOL.
I am not being superior. I’m am not interested in celebs and BB contestants sleeping with footballers but I lap up political gossip every chance I get.
It’s just a different kind of prurience I guess. But at least I admit I am a political junkie!
#23 by Allan on May 23, 2011 - 7:28 pm
Compared to the other bits of information blocked from coming out because of super-injunctions, this one is firmly not remotely in the public interest.
I said this on my blog, that I wish the Sunday Herald had genuinely revealed someting which was in the public interest (the example I gave was the revilation last week that Fred Goodwin had an affair with a senior collegue) that would make people think about what is being allowed into the public domain. Instead I think that the Sunday Herald have rather cheepened themeselves & the rather valid arguments that they put forward.
#24 by CassiusClaymore on May 23, 2011 - 4:30 pm
Despairing – the Sunday Herald didn’t break English law. The English injunction does not (and can not) apply to actions taken in Scotland. Broadly speaking, they have no ability to restrict those located outside their jurisdiction. The footballer’s advisers should have sought an interdict in a Scottish court if they wanted to prevent the allegations being published in Scotland.
Much of the confusion arises because the English courts often adopt what might be described as an expansionist and/or extraterritorial stance. So, their super-injunctions purport to apply to everyone in the world. Bless them and their delusions of imperial grandeur!
As an aside, I do think this footballer has been terribly badly advised from a legal/tactical perspective. This is now a huge story, whereas the usual footballer-slapper kiss and tell doesn’t make much of an impact. Had he not taken these steps, this matter would have been publicised, and forgotten about, long ago.
CC
#25 by baz1860 on May 23, 2011 - 7:11 pm
I don’t have the Herald article here at this moment, but I’m pretty sure they were very clear to make the distinction between naming the “gentleman” in question as the owner of the superinjunction and naming him as the person alleged by twitter users to be in possession of the injunction.
I read Campbell Deane’s piece in the Scotsman today – I was left with the definite impression that his ‘legal opinion’ was biased by the fact that his employers had missed the opportunity to run the story themselves. The Scotsman’s POV in general seemed covered in the stench of sour grapes.
#26 by James on May 23, 2011 - 7:17 pm
And now John Hemming’s named Giggs in the Chamber, the rest of the media are off the leash. He should have been remembered for scoring on the park, as they say.
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#27 by Doug Daniel on May 24, 2011 - 11:17 am
“And yet, I am a hypocrite of the highest order in writing the above. I wouldn’t touch the Sun with a bargepole but I was on Twitter like a shot, quickly finding out who all the footballers were and which journalists are possibly facing charges this weekend.”
I don’t think that is hypocritical, Jeff, so don’t be so hard on yourself. There have been loads of footballers appearing in the Sunday papers for their various sexual indiscretions over the years, but I have never had any interest in reading about any of them, except for one case – the time there was a whole group of them who couldn’t be named and whose faces couldn’t be shown. It’s the same here – I have no interest in who Ryan Giggs is playing keepie-up with, but it does interest me that he is trying to hide it. In fact, truth be told, I’m still not entirely sure of the story, such is my disinterest in his private life. All I know is he’s supposed to have had an affair with Imogen from Big Brother, but I get the feeling there is more to it than that.
It’s unfortunate that it has taken a footballer trying to hide things to get the public interested. There was the business with Trafigura dumping toxic waste in Côte d’Ivoire a year or so ago, which was a major story that was being suppressed by a super-injunction. Did the fickle public give a toss? Not unless you were a reader of the Guardian or Private Eye. Could it be that the public are more motivated by jealousy of rich individuals than by outrage at big businesses wielding far too much power?
The press have dug their own hole here, though. The constant obsession with tittle-tattle is what has led to this state of affairs. There is obviously a good case for some sex scandal stories to be made public, like when a government minister’s indiscretions lead to abusing his position, such as in the cases of Blunkett and Mandelson. But there are also stories that may interest the public, but are none of the public’s business – stories about Simon Hughes and Mark Oaten a few years back spring to mind, which were just spurious gossip which didn’t affect their competance as MPs in the slightest. Does it really matter, for instance, if Tiger Woods has mistresses in every country in the world? Does that really have an impact on anyone outside his immediate family? Is it even the best thing for the spouses of cheating famous figures to have their partner’s indiscretions plastered all over the place?
Super-injunctions should not exist, but the press also need to stop providing any argument in favour of their existence.