Super-injunctions, football players and their affairs

While they were initially intended to protect the people whose lives may be at risk should their identities ever be exposed (for example, child offenders), super-injunctions are being used by English celebrities and other personalities to stifle freedom of expression in England and Wales. Not only do these orders prohibit publication of information the applicants regard as sensitive but the orders prohibit any publication of the fact that they exist in the first place. These orders only appear to be enforceable in England and Wales and should be too much of a concern for anyone outside the United Kingdom, as I understand their application.

One case has become particularly well publicized regardless of the super-injunction apparently in force largely due to a @PigSpotter-style Twitter account set up to shine a spotlight on these super-injunctions and the secrets they are intended to hide.

@InjunctionSuper published this tweet exposing an affair between UK soccer star, Ryan Giggs, and Imogen Thomas. This tweet sparked legal proceedings which Ars Technica tried to describe recently:

That brings us to today. An entity going by "CTB" has filed suit against Twitter and some of its users for breaking a super-injunction over... something. According to Bloomberg, there were no details on what the super-injunction was about or who was accused of leaking the information. However, the initials "CTB" are also used in a separate suit about an athlete who won an anonymity order after allegedly having an affair with a reality TV "star," leading many to believe that CTB is the athlete and someone posted details of the affair to Twitter, leading to the new lawsuit.

Twitter is listed as a defendant in the suit, as well as "persons unknown responsible for the publication of information on the Twitter accounts." It's not clear how the High Court plans to get a US company like Twitter to comply, though. According to US law, sites like Twitter and Facebook aren't liable for the crazy postings of their users thanks to Section 230 of the Communications Decency Act, and for most things, users' speech is protected by the First Amendment. 

As for Twitter's response to the story: "We are unable to comment."

Update: We've been informed by our resident Brit (Peter Bright) that CTB is soccer player Ryan Giggs, who is believed to be attempting to cover up his affair with TV personality Imogen Thomas. It's also worth noting that this is information that is easily found on the Web. 

To say the effects of these super-injunctions are chilling is an understatement. I have great difficulty seeing these sorts of orders ever getting past a Constitutional test in our courts and yet they seem to be fairly common in English and Welsh courts, ironically due to an interpretation of the 1998 Human Rights Act passed in the United Kingdom.

Giggs and other super-injunction applicants face a number of practical challenges enforcing their orders. One of those challenges is the Streisand Effect which Giggs appears to be unaware of and which has led to exposure of his identity on Twitter and elsewhere (at one point his name was reportedly mentioned 16 times a minute). His efforts to make use of an extremely onerous legal mechanism (one which UK government ministers are expressing increasing concern over) to stifle freedom of expression in order to keep his alleged affair with Imogen Thomas secret are only contributing to the whole affair's increased publicity.

Underestimating the Streisand Effect is becoming a classic mistake made by litigants and their lawyers who are unfamiliar with the phenomenon and the manner in which these sorts of memes can rapidly go viral across the social Web. It is also a phenomenon which reputation management experts are very much aware of and seek to guard against where possible. The Giggs-Thomas story and the super-injunction used to conceal it will likely be of passing interest for the duration of this particular news cycle but it is yet another reminder of how lawyers must approach certain issues very differently. While Twitter, Facebook and other social Web platforms can be, and are being, used to defame people and invade their privacy, unscrambling those eggs can prove to be virtually impossible.

As I end off this post news is breaking on Twitter that Ryan Giggs has been named in the English House of Commons as the person behind this super-injunction, opening the Twitter flood gates. John Hemming MP is taking advantage of a qualified indemnity granted to English lawmakers to reveal Giggs identity. Officially, at least.

Courts are not always interested in defamation cases

An Hendrina attorney, James Charles Reynecke Smith, recently had his appeal to the Pretoria High Court regarding his unsuccessful defamation claim rejected because "the incident was insignificant and did not warrant the court's attention".

According to News24, Smith had just moved into new offices and was having new carpets installed. Mats apparently had to be placed in the sun to enable the glue to stick better. The defendant in the proceedings, Christiaan Jacobus Botes, apparently drove over one of the mats which was partly in the road where other motorists had driven around them. Smith angrily confronted Botes and Botes allegedly called Smith a "doos" and a "poes" during the course of the exchange.

Smith appears to have sued Botes for damages in the amount of R100 000 in the local Magistrates Court (the maximum claim permitted in a Magistrates Court unless the parties agree otherwise) and the magistrate dismissed the claim. Smith then appealed to the Pretoria High Court against the magistrate's decision. The judges apparently said there was no question Botes' comments were defamatory (the judgment doesn't appear to be available yet so I am relying on News24's report) and the question was likely whether the defamation was defensible. Ultimately, though, the judges stated that the matter was not significant enough to warrant the court's attention and Smith's appeal presumably failed on that basis.

This case is a good reminder that not every defamation case is as severe as the parties may believe and certainly not that severe that our overburdened courts would leap to the parties' aid. There is a maxim in our law (well, there are many but this is a Latin phrase I actually remember from university) which the judges likely invoked: De minimis non curat lex. In a nutshell it means the law does not concern itself with trifles. While there are defamation cases which are significant, there are far more that are not matters the courts will concern themselves with. In those cases good sense and maturity would probably lead to a far better result.

(Credit: Thanks to my colleague, Lance Michalson, for his tweet about this story which inspired my post)