When Ryan Giggs and Imogen Thomas embarked on a brief relationship they could not have imagined that it would develop from kiss-and-tell to a legal battle and now into a constitutional crisis.
On 14 April Mr Justice Eady granting a privacy injunction to Ryan Giggs. When Giggs’s anonymity was blown on Twitter, Thomas, now supported by the “Sun” (NGN), headed back into court to challenge the injunction. Mr Justice Eady released a trenchantly-worded judgment, explaining why he had made the initial ruling to keep the identity of the footballer secret, in which he concluded there was “ample reason not to trust” the young woman. The judge noted that evidence before the court “appeared strongly to suggest that the claimant [the anonymous footballer] was being blackmailed.” Eady did not reach a final conclusion on the point but, in refusing the application, he added: “It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion”.
Within the hour John Hemming MP named Giggs in the House of Commons under parliamentary privilege. NGN immediately made a further application for the anonymity of the claimant to be removed on the basis that the name had been repeated thousands of times on the internet. In a brief, three paragraph ruling, Mr Justice Tugendhat refused the application. The third paragraph is worth repeating in full, confirming that privacy expands to cover intrusion and harassment:
“It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.”
There has been fury in some parliamentary quarters, with indignation that the judiciary was usurping the legislative rights of parliament. Senior legal figures and politicians warned that super-injunctions have been rendered pointless by Twitter and other social networking sites, leaving the law on so-called gagging orders in a “complete mess”. But Eady was doing what parliament had asked the courts to do when it passed the Human Rights Act (HRA), which is to weigh up privacy and freedom of expression as embodied in articles 8 and 10 of the HRA. David Cameron said that Parliament had not provided judges with sufficient guidance, forcing them to rely on legislation from the European Courts. He said: “I think judges are saying, look there is a European Convention of Human Rights which we can use. And because Parliament has not discussed this enough, they feel they are filling a gap…We have such extensive social media and internet access that everything becomes more intense.”
The Lord Chief Justice, Lord Judge, weighed into the debate. He said: “Contrary to some commentary, judges in this country did not create privacy rights. They were created by Parliament. Now they have been created, judges cannot ignore them – they must apply the law.” He warned MPs that hiding behind ¬parliamentary privilege was not a clear cut defence for flouting court orders. He admitted that bloggers and users of social networking sites such as Twitter would not necessarily be covered by injunctions. But he added that the internet had “by no means the same degree of intrusion into privacy as the story being emblazoned on the front pages of newspapers”, which “people trust more.” Society should consider other ways to bring Twitter and other internet sites under control. He said: “Anybody can put anything on it, modern technology is totally out of control. I’m not giving up on the possibility that people who peddle lies about others through using technology may one day be brought under control, maybe through damages, very substantial damages, maybe even injunctions to stop them peddling lies.”
Following the publication by the Master of the Rolls, Lord Neuberger, of the findings of his committee on injunctions, Attorney General Dominic Grieve announced that a joint committee of peers and MPs would investigate the use of court injunctions to protect privacy. He said it would examine whether the current system was working following recent controversy over super-injunctions.
Photo courtesy of Edwin. 11 photostream on Flickr
