It’s easy to mock judges for being out of touch with society, and it is true that they live in a cocooned world and don’t tend to mix with much of society. But when a judge tells us that “modern technology is totally out of control” it’s clear that there’s more going on than the bench needing to be advised that the Rolling Stones are, m’lud, a modern beat combo. The assault on Twitter and its users by the appropriately named Lord Judge – Britain’s lord chief justice – is about the contract that we make as citizens with the law.
So let’s back up a bit. This is about the super-injunction: the fabulous British injunction, or gagging order, that prevents people repeating an allegation, from naming those who are the subject of the allegation, and from stating that the injunction exists. They came to fame in 2009 when the trading company Trafigura used them as a device to prevent public inquiry into its dumping of toxic waste off the Ivory Coast. The Guardian eventually succeeded in having this lifted, as being contrary to the public interest.
A rolling cast known by their jobs
Since then, there has been a string of cases in which “celebrities” and others in the public eye have been granted super-injunctions, which apply in England and Wales, to protect their privacy. I can mention some of these because they have been lifted: Andrew Marr chose to relax an injunction which covered an affair that he had had; the banker Fred Goodwin’s – about an affair he had with a senior colleague as the Royal Bank of Scotland collapsed around them – was partly lifted after he was named in the both the Commons and the Lords under Parliamentary privilege on the basis that it was in the public interest.
The rest of the rolling cast of the super-injunction story is known only by a set of random initials and their jobs: the professional footballer, the actor, the broadcaster, and so on. Lord Judge is cross because many of them may, or may not, have been named on Twitter – based in California – sometimes by people who do not live in England or Wales and may, or may not, be beyond the reach of English civil law. And this became news this week because lawyers acting for the footballer prepared a lawsuit against “Twitter Inc. and persons unknown”. The judge’s view is clear:
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?
The social contract
The trouble is that this makes the issue seem as if it is about technology, when it’s actually about the social contract which the law represents. It may be clear from a lawyer’s perspective what constitutes “a true claim for protection”, it’s less clear, from a social perspective, why or when they should be granted or who has the ability to make such a claim. Even when the law is not an ass, lawyers can be. The law is a set of agreements made, formally and informally, over time, between parliamentary representatives, judges, and the people.
The tension over the super-injunctions isn’t just about – as Lord Judge may imagine – a prurient interest in celebrity. They’re also about wealth and power. You need to be rich to finance a super-injunction. One of the drivers of them has been the increasing importance of privacy as a human right, but another is increasing economic inequality (the High Pay Commission pointed out the scale of this earlier this week). For some reason, the words of Anatole France come to mind: that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”
Blind to history
It’s also relevant that the ground rules between parliament, judges, the press and the people have been fought for over centuries. The judges’ response to the naming of Fred Goodwin by the MP John Hemming, and the possible naming of super-injuncters on Twitter, is blind to a lot of history. When another judge, the master of the rolls, Lord Neuberger, pops up to say that statements made in Parliament which breach injunctions might not be protected by parliamentary privilege, this blindness to history becomes intense.
Parliamentary privilege does two things. It gives parliamentarians immunity from prosecution for things said in the proceedings of parliament, and it allows journalists to report those things in a current – “contemporaneous” – news report. The right of immunity of Parliamentarians within Parliament was one of the principles for which Parliament fought in the English Revolution during the 17th century, and was enshrined in law in the Bill of Rights in 1689. The principle that the press is free to report Parliament goes hand in hand with this. As the then Lord Chancellor, Lord Goldsmith, said in 2006,
The purpose of Parliament having privilege is so that there can be free debate in Parliament. There is no point in free debate in Parliament if the free debate is then kept secret by the media.
Social media does represent a challenge to legal process. When I did jury service recently we were reminded at the start of trials that looking up details of a case online would be contempt of court. Courts now have processes to make sure that the jury decides the case privately, without external influence; our mobile devices were removed from us by the ushers as we left to deliberate, and returned after we had given a verdict. And this is as it should be. But when judges start comparing the police response to tweeting about super-injunctions – essentially a public and political argument about the limits of freedom of speech – with the way they respond to child pornography, as Lord Judge did this this week, you can sense a looming crisis of representation and legitimacy.
A particular form of preferment
One of the issues about the super-injunctions and Twitter is about a particular form of preferment: the complainants are able to afford the best legal process that money can buy, while the judges insist that this process must be honoured by the rest of us. Of course, one of the basic building blocks of the lawful state is that no citizen is above the law. But the law can maintain its integrity only if all of us can turn to it for our protection. If privacy matters, the legal protection that ensures it should not be the preserve of the rich. Imogen Thomas is now universally known to have had the affair with the professional footballer, and her reputation smeared from the bench, even while his name is protected by the courts. The tweets about the super-injunctions, I think, are at least partly a way of the citizens reminding the judges of the context in which the law must operate if it is to maintain respect and credibility.
When I first saw an apparent list of super-injunctions on Twitter, I wasn’t sure if they were accurate or not – and still have no idea. At least one seemed to be wrong, since Jemima Khan instantly denied having had an affair with Jeremy Clarkson (and who can blame her?). As to the rest, I have no information, and it would be hard to demonstrate that most of the Tweeters – even those in England and Wales – were knowingly in breach of an injunction. Or what you make of those who noted that #ryangiggs was trending on Twitter at the end of last week. Twitter, of course, unusually for a social media organisation, also has some spine, as it demonstrated by its response to the Wikileaks investigations.
As it happens, Lord Neuberger’s report on super-injunctions and anonymised injunctions, published at the end of last week, emphasised the importance of “open justice”, and said they should be granted only in limited circumstances and for short periods of time. In other words, although his Lordship didn’t put it exactly like this, that their widespread use and lazy granting last year had made the law look a bit of an ass. Maybe it wasn’t “modern technology” that was “totally out of control”.