Twitter users and the courts go to war over footballer's injunction

Owen Bowcott and Josh Halliday, guardian.co.uk, Friday 20 May 2011 20.26 BST

• Article history

As Twitter users repeatedly named a footballer who has taken out a privacy injunction, Lord Judge warned that 'modern technology was totally out of control'. Photograph: Ian Nicholson/PA



Attempts to identify a famous footballer hiding behind a privacy injunction have spiralled into an online battle over freedom of speech, as internet users responded to high court action by repeatedly naming him on Twitter. The high court granted a search order against the US-based microblogging site on Friday as the lord chief justice, Lord Judge, warned that "modern technology was totally out of control" and called for those who "peddle lies" on the internet to be fined. The attempt to compel Twitter to identify those responsible for the breaches comes after a number of its users earlier this month purported to reveal the name of the player who allegedly had an affair with the model Imogen Thomas.

The footballer's legal team began its action in London on Wednesday. There is a suspicion that a media company may be linked to the postings on Twitter, which were put up nearly two weeks ago. But the name of the footballer was spreading even more rapidly across Twitter in defiance of the court injunction, setting the stage for a confrontation between the judiciary and cyberspace. Earlier Lord Judge – welcoming a juridical report on superinjunctions – said readers placed greater trust in the content of traditional media than those "who peddle lies" on websites. He urged that ways be found to curtail the "misuse of modern technology", in the same way that those involved with online child pornography were pursued by the police. "Are you really going to say that someone who has a true claim for protection perfectly well made has to be at the mercy of modern technology?" he asked. The lawsuit lists the defendants as "Twitter Inc and persons unknown". The "persons unknown" are described as those "responsible for the publication of information on the Twitter accounts".

Lawyers have applied for a court order that could force Twitter to hand over the name, email address and IP address of the person behind the account, the Guardian understands. The orders – known as a Norwich Pharmacal orders – are commonly used in illegal filesharing cases. The Guardian understands that the claim form, filed to the high court by the footballer's legal team, will not be made public until next week. Earlier this month, an unknown person or individuals published on a Twitter account the names of various people who had allegedly taken out gagging orders to conceal sexual indiscretions. The account rapidly attracted more than 100,000 followers.

Twitter said: "We are unable to comment." The London-based law firm representing the footballer had also not responded to a request for comment at time of publication. Twitter and other social networks were accused of making "an ass of the law" by the culture secretary, Jeremy Hunt, and politicians after a number of celebrities with injunctions were allegedly exposed online. The socialite Jemima Khan was among those alleged on Twitter to have obtained an injunction. Khan described as a "bloody nightmare" rumours suggesting falsely that she had obtained a gagging order to prevent publication of "intimate photos" of herself and the TV presenter Jeremy Clarkson.

Twitter has in the past said that it "strive[s] not to remove tweets on the basis of their content", but that it would remove "illegal tweets and spam". Previous defamation claims against the search engine Google failed on the grounds that it is not a publisher and not responsible for the contents of the blogs and articles listed in its search results. Richard Hillgrove, the owner of Hillgrove PR, which provides advice to celebrities, said that Twitter needed to be made as accountable as any other medium. "It has gone from 'the back bedroom' to mainstream medium. "Celebrities are being held to account if they Tweet commercial interests. It works both ways," he said.

Twitter faces legal action by footballer over privacy

Josh Halliday, guardian.co.uk, Friday 20 May 2011 19.00 BST

Article history

Twitter has been sued by a footballer in a privacy row. Photograph: Chris Batson/Alamy



Website faces action after users purported to reveal name of player who allegedly had affair with model Imogen Thomas

A footballer has launched legal action against Twitter after a number of the microblogging site's users purported to reveal the name of the player who allegedly had an affair with model Imogen Thomas. The footballer's legal team began the legal action at the high court in London on Wednesday, in what is thought to be the first action against the US social media firm and its users. The lawsuit lists the defendants as "Twitter Inc and persons unknown". The latter are described as those "responsible for the publication of information on the Twitter accounts" in the court document, according to reports.

Earlier this month, an unknown person or individuals published the names of various people who had allegedly taken out gagging orders to conceal sexual indiscretions on a Twitter account. The account rapidly attracted more than 100,000 followers. Twitter declined to comment. The lord chief justice, Lord Judge, on Friday said Twitter and its users were totally out of control when it comes to privacy injunctions and court orders. Although there was no mention of Twitter in Lord Neuberger's long-awaited report on superinjunctions, published on Friday, Lord Judge said readers placed greater trust in the contents of traditional media than in those "who peddle lies" on websites.

Twitter and other social networks were accused of making "an ass of the law" by culture secretary Jeremy Hunt and politicians after a number of celebrities with injunctions were allegedly exposed online. The socialite Jemima Khan was among those claimed on Twitter to have obtained an injunction. Khan described rumours, which had suggested falsely she had obtained a gagging order to prevent publication of "intimate photos" of herself and Jeremy Clarkson, as a "bloody nightmare". Twitter has said that it "strive[s] not to remove tweets on the basis of their content", but that it would remove "illegal tweets and spam".

Mark Stephens, a senior media lawyer at Finers Stephens Innocent, said the lawsuit had little hope of succeeding. "This is not only scraping the bottom of the barrel, this is beneath the barrel. This [injunction] information is already available on servers outside of this jurisdiction and on website outside this jurisdiction," he said. "You would have to be a moron in a hurry to suggest to this footballer that he throw good money and publicly excoriate himself yet further." Schillings, the London-based law firm representing the footballer, had not returned a request for comment at time of publication.

Superinjunctions: Modern technology out of control, says lord chief justice

Owen Bowcott, legal affairs correspondent, guardian.co.uk, Friday 20 May 2011 13.39 BST




Lord Judge said he believed that ways would be found to curtail the 'misuse of modern technology'.
Photograph: Jonathan Hordle/Rex Features


Lord Judge: People who defy legal restrictions and 'peddle lies' over the internet should have to pay damages

Modern technology is totally out of control, the lord chief justice has warned in a call for action to be taken against those who defy court injunctions and "peddle lies" on social media and websites. Lord Judge welcomed a report by an influential judicial committee on privacy orders that called for superinjunctions to be granted only in "very limited circumstances" and normally for short periods of time. But he admitted that many bloggers and sites such as Twitter were publishing information that traditional newspapers and television stations were prevented from revealing by court orders.

There is no mention in the report of the impact of Twitter or the internet on the enforcement of court orders, but the lord chief justice said readers placed greater trust in the contents of traditional media than in those "who peddle lies" on websites. 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", he said. The names of those people who had taken out anonymity orders have been circulating, sometimes inaccurately, on Twitter. "Anybody can put anything on [such sites]," he said.

Lord Judge said he believed that ways would be found to curtail the "misuse of modern technology" in the same way that those involved with online child pornography were pursued by the police. "Are you really going to say that someone who has a true claim for protection perfectly well made has to be at the mercy of modern technology?" he asked. "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."

In a report that repeatedly stresses the importance of "open justice", the study headed by the master of the rolls, Lord Neuberger, proposes giving the media advance notice of applications for gagging orders. Dismissing allegations that judges have been creating new laws beyond the authority of parliament, the committee on superinjunctions nonetheless states that "there was justifiable concern [last year] ... that superinjunctions were being applied for, and granted, far too readily". The report also says that media reports of comments made in parliament which set out to contravene injunctions may be in contempt of court. Reports of statements in the Commons and Lords are protected by parliamentary privilege only if they are published "in good faith and without malice".

Addressing the media at the royal courts of justice in central London, the lord chief justice: "It is, of course, wonderful for you if a member of parliament stands up in parliament and says something which in effect means an order of the court on anonymity is breached. "But you do need to think whether it's a good idea for our lawmakers to be flouting a court order just because they disagree with a court order or they disagree with the privacy law created by parliament." On Thursday the Liberal Democrat Lord Stoneham of Droxford asked a question in the Lords revealing details of an injunction obtained by the former Royal Bank of Scotland boss Sir Fred Goodwin preventing coverage of details of his private life – which later led to the order being part-lifted.

Lord Judge said senior judges would be holding talks with the speakers of the Commons and the Lords over the issue. "It will take quite an effort for parliament to get a grip on this," he said. The study will be scrutinised carefully by ministers, who have sent out mixed signals about whether they believe a privacy law needs to be introduced to provide clearer guidance for judges. David Cameron's official spokesman said the government would consider Lord Neuberger's report before deciding whether to legislate on privacy issues. The spokesman told reporters at a regular daily briefing: "We think it is important to find the right balance between individual rights of privacy on the one hand and the right to freedom of expression on the other. We think this is a very useful report and it is something we will be considering very carefully."

While no one knows the precise number of privacy injunctions in circulation, the committee says it is only aware of two genuine superinjunctions – those whose existence cannot even be revealed – having been granted since January 2010. One was set aside on appeal and the other was in force for only seven days. "The principle of open justice is a fundamental constitutional principle," the report states, "although it is not an absolute principle. It applies to interim injunction applications as it does to trials. "... As they incorporate derogations from the principle of open justice, superinjunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent."

The report sets out draft guidance on how applications should be processed in future, allowing third parties, including the media, to take part in, or lodge objections to, privacy proceedings. It is hoped the presence of other parties in such complex cases will provide reassurance that the cause of justice is being served and that the law is not being exploited by the wealthy to close down debate about matters of public interest. It is acknowledged that new legal procedures will be required to ensure that those who attend such hearings do not divulge details until they are reportable. "It will be a very rare case where advance notice of such applications to media organisations, which are likely to be affected by any order, can justifiably be withheld."

Lord Neuberger, who is the head of the civil judiciary, said: "Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. "However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And where it is ordered, the facts of the case and the reason for the secrecy should be explained, as far as possible, in an openly available judgment." In a clear rebuff to politicians who have accused judges of inventing novel legal precedents without reference to parliament, Lord Judge welcomed the report and observed: "Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by parliament [through enactment of the 1998 Human Rights Act].

"Now that they have been created, judges cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by parliament – including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights ... of freedom of expression. "The relationship between parliament and the courts has, for generations, been predicated on mutual understanding and respect. Judges have never asserted, and they are not now asserting, any authority or jurisdiction over parliamentary proceedings or debate, which are exclusively matters for parliament."