Injunctions v Twitter: The legal view

In recent weeks it has seemed as though taking out a privacy injunction achieves little more for an underfire celebrity than putting them on a fast track to overnight notoriety and amplifying the very story they were trying to suppress. 

A host of names have been linked with so called 'super injunctions' and it seems no sooner is one granted than it begins to crumble on contact with social media.

So are such injunctions a spent force in the days of Twitter? 

Understandably the legal profession is quick to say 'no', pointing out that a few revelations on Twitter do not change the fact the vast majority of such injunctions remain intact. Similarly, one lawyer claimed it's "only a matter of time" before the courts make an example of social media injunction-busters in an attempt to dampen online chatter.

But social media has undoubtedly changed the game.

Niri Shan, head of media law at Taylor Wessing, told The Media Blog: "If I was advising a client now, I would have to tell them there is a chance it will come out in some way. Then not only would they have to deal with whatever it was they wanted to keep private in the first place but also the resulting flak which comes from effectively challenging people to out them. It may be though that it buys them time to get their house in order."

Twitter

Danvers Baillieu, senior associate at Pinsent Masons, acknowledged that while privacy claims "often fan the flames of publicity" they remain popular with those able to afford them.

"A super-injunction can backfire, but if it doesn't there is little downside apart from the cost," he said.

It is estimated there are currently more than 50 super injunctions still in place, some dating back many years. Of those, the identities of only a few claimants are purported to be common knowledge on social networks. As Baillieu points out the odds then are still very much in the claimant's favour.

And those odds may improve if courts can ever tackle the erosion of such injunctions on social media sites such as Twitter.

Steve Kuncewicz, intellectual property and media solicitor at Gateley LLP, said: "The courts are now getting to grips with social media and its effect on their orders, and they'll be getting a grip of a recalcitrant Tweeter sooner rather than later."

"If the owner of a Twitter account can be traced, then they can be pursued for contempt of court. Although no-one so far has been brought to book over the recent revelations it's only a matter of time before the Courts make an example out of someone. Offline law applies to the online world and you can only hide behind a profile picture for so long."

Kuncewicz concluded: "Superinjunctions can still work, but the chances of them working in isolation without action being taken to deal with online activity is pretty low."

Comments

[Alan Fleming]

Perhaps more interesting than who published the information on Twitter, is who leaked the information to the publisher? There are potentially lots of vested interests there - and a relatively small pool of potential leakers...

[Anon]

Alan, I agree they would need to get as close to the source as possible but I think they are often one and the same person. Reading some well known journalists' twitter accounts there is a lot of suggestion and allusion. Not naming any names. But as you say these super injunctions are not seen by that many people.