Monday, May 23, 2011

contempt and law

Over the last few days, a curious row has raged in the UK, in artful innuendo and allusion until very recently. It concerns the topic of superinjunctions, legal tools to silence the media that are available to those who can afford them. They are basically the biggest gun in the battle between privacy and freedom of speech. What's going on?

In a society that values freedom of speech, information should flow freely and it's hard to see how superinjunctions are anything but pathetic gagging orders. The case of Trafigura, a scandal-prone privately held company notorious for dumping toxic waste in the murky waters of a Third World country when disposing of it properly was too expensive, illustrates this powerfully. Trafigura didn't think it was in its best business interests if the world knew about the story, and tried to suppress press reports and stories. They failed, as they should have.

A different perspective is afforded by the ongoing case of Dominique Strauss-Kahn. This man is far from a saint by even the most relaxed standards, but at this point he is still legally innocent. And yet, with reports of his arrest on TV the same night and media pressure and unsavory stories from his past, he had to resign both as IMF boss and as French presidential hopeful. Is this a fair price to pay for openness? What if he turns out to be innocent after all?

Superinjunctions were designed as an instrument to deal with such cases. They are granted by a judge in certain extraordinary cases and are designed to prevent information on some sensitive matters from spreading. They do this by cloaking everything in total secrecy, but they do it extremely poorly. The person or company that applied for the injunction must not be named, nor must it be mentioned that a superinjunction against that person exists. For this to work, everybody obviously needs to know who the person behind the superinjunction is, lest one spills the beans by accident. And yet, there are apparently a few dozen superinjunctions in force that no one knows about. What a nonsense!

A week ago or so the fact that public figures have apparently been granted these injunctions rather frivolously, to prevent the press from disseminating information they considered detrimental to their public image, sex stories, infidelities and the like. I couldn't care less and I didn't follow the debate, but it didn't go away. In particular, a footballer stood out in his Quixotic fight for anonymity.

Ryan Giggs, a 37-year-old Man United first teamer for twenty years, a wholesome player if there ever was one, squeaky-clean and scandal-free, had allegedly dug into the inflated boobs of a B-list celebrity and then done things with her that no one needs to know about, except maybe his wife. But does a lapse in moral judgment deserve a court order to be kept private? The answer must be yes because an injunction was granted.

Being English law, the injunction applies only to England. Being established law, it applies to print and broadcast media. Blogs and social media exposed Giggs long ago. Newspapers never failed to mention that in their stories. It was a bizarre situation, but it turned truly farcical when the Sunday Herald showed a thinly disguised picture of Ryan Giggs on its website. The English media were still not allowed to name names and now also prevented from specifying the latest hole in the cover. They were restricted to mentioning "a Scottish Sunday paper". Everyone else put Imogen Thomas into the Twitter search box and got overwhelmed by the facts. When Giggs went after Twitter, anonymously, to force the company to reveal the user who had first leaked his name, even I couldn't help checking out who was the nitwit at the center of this absurdity.

Despite all this, the injunction remains in place as of tonight, and naming Ryan Giggs puts me in contempt of court, a serious legal matter. A much more serious matter, however, is that the law is in contempt of common sense and in urgent need of reform (as is libel law, a related issue). Maybe energies can focused on something productive now?

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