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Social media making mockery of privacy laws

By Peter Wilkinson, CNN
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Twitter vs. UK super-injunctions
  • Celebrities resort to ever-more desperate attempts to gag reporters
  • In UK, individuals have taken out injunctions suppressing reporting of the story
  • MP reveals footballer Ryan Giggs got super-injunction to prevent reports of affair
  • Many individuals "outed" on social media, where users are harder to track down

London (CNN) -- The philandering celebrity has often had one failsafe option if caught out by tabloid snoopers: call the lawyers, go to court and hope those salacious details keep out of the public eye.

Not any more.

Now, as the internet renders individual countries' privacy laws increasingly powerless, the rich, powerful or well known, are resorting to ever-more desperate -- and, say media experts, futile -- attempts to gag reporters.

In the UK -- which has among the harshest libel laws in the western world -- individuals and companies have taken out injunctions suppressing reporting of the story. Now, more controversially they are taking out super-injunctions that prevent reporting even of the fact that such an order is in force.

How a publicist heads off damaging claims

And if a journalist or media organization breaks the injunction -- even if reporting a story that is true -- they could be ruled to be in contempt of court, punishable by up to two years in prison and an unlimited fine.

Now though, an MP has used parliamentary privilege -- which allows a lawmaker to make statements that would not be permitted outside parliament -- to reveal that Manchester United footballer Ryan Giggs is the man alleged to have taken out a super-injunction to prevent reporting about his affair with a reality TV star.

How to handle UK super-injunctions

Last month the same lawmaker, John Hemming, revealed that former Royal Bank of Scotland chief executive Fred Goodwin also took out a super-injunction.

The fact that Giggs, a 37-year-old married father-of-two, was the footballer at the center of the super-injunction affair has been Britain's worst-kept secret for weeks: he was named in tens of thousands of tweets, and despite being one of the most popular players in the country, visiting fans at Manchester United's Old Trafford ground on Sunday made him a target from the stands.

These and other individuals, who sought protection through the courts, were effectively "outed" following mass postings on Twitter and other social media. Legal observers say because Twitter is run by a company based in the United States, outside the jurisdiction of English courts, it makes it difficult for them to identify anyone who posted material, while the weight of numbers of people retweeting makes it unlikely.

Media lawyer Charlotte Harris, of Mishcon de Reya, is in no doubt who is behind some of the defamatory posts. "There has been an illegal and deliberate leak on Twitter using that service as a shield, and it's likely the source was a newspaper," she told CNN.

In a statement sent to CNN, Twitter said: "We don't comment on individual accounts. In keeping with our policy, we review reports that accounts violate the Twitter Rules and Twitter Terms of Service."

Harris said stories about the private lives of celebrities were often just titillation. "If this was a genuine exploitation story, there would be a public interest to publish it. Trafigura (an oil-trading company that tried to prevent the Guardian publishing details of an African pollution disaster), for example, should not have been covered by a super-injunction, but some of the recent cases covered intimate details of relationships that should remain private.

"Freedom of speech does not mean you can shout 'fire' in a crowded theatre."

Other commentators disagree. When BBC presenter Andrew Marr revealed last month in an interview in the Daily Mail that he had taken out a super-injunction to prevent newspapers writing about his extra-marital affair, he was accused of hypocrisy.

It was pretty rank of him to have an injunction while working as an active journalist.
--Ian Hislop on Andrew Marr

Marr admitted he felt "uneasy" about taking out the legal order, but he was criticized by Ian Hislop, editor of satirical magazine Private Eye. "As a leading BBC interviewer asking politicians about their failures, it was pretty rank of him to have an injunction while working as an active journalist," said Hislop.

Goodwin, boss of RBS, which was rescued in 2008 with £45 billion ($74 billion) of government money, was another public figure to obtain a super-injunction, Liberal Democrat lawmaker John Hemming revealed in March.

Hemming said the order -- which another lawmaker revealed was taken out to prevent reporting of a relationship with a senior colleague -- showed there was "one rule for the rich like Fred Goodwin and one rule for the poor."

While Hemming's allegation that Goodwin took out a super-injunction was made legally due to parliamentary privilege, some anonymous users of social media are now effectively taking the law into their own hands.

"If laws don't have acceptance they get over-written by the use of communications technology such as social media," Hemming told CNN. "I'm not aware of anybody who believes there should be no limits as to how reporting goes. But there is excessive secrecy and it's causing problems."

Hemming said he had little sympathy for people taking out super-injunctions, reported to cost up to £50,000 each, adding "they're just wasting their money."

The situation differs markedly in other countries. In the United States and France, for example, the right to privacy is enshrined in both constitutions, but in the U.S. the public interest often trumps it.

In France, the same is true, but as the current case of former IMF chief Dominique Strauss-Kahn has demonstrated, the media effectively censors itself, according to Pierre Hourcade, a lawyer admitted in Paris, New York and California.

"Everyone here talked about the fact that Strauss-Kahn had problems with women, but they weren't reported even though there was no legal prohibition on doing so. Journalists had the right to cover it, but the general climate among the media is of self-restraint," Hourcade said.

"Politicians and the press have a very cosy relationship: if you stay cool about our private lives we'll feed you information."

But the failure of journalists to cross this "red line" has come as a huge shock in France, Hourcade said, forcing its media to become less supine. "Italy used to be like us a few years ago, but now they are saying, 'You can do it France!' Even with his ownership of much of the media Prime Minister Silvio Berlusconi doesn't have the same protection as he had before."

What these people don't seem to understand is that taking out a super-injunction is like painting a big red target on your back.
--Lawyer Jennifer Robinson
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But in the UK, even Prime Minister David Cameron is concerned that privacy laws are being developed without parliament having a say. Media lawyer Jennifer Robinson, of Stephens Finer Innocent, agrees, saying the advent of hyper-injunctions, which prevent people from even talking to their elected member of parliament about a legal order, now poses a threat to democracy.

"They raise very important issues about free speech and are an incredibly oppressive measure," Robinson said. "You are not able to talk about a particular subject nor are you allowed to even tell anyone you aren't allowed to talk about that subject. And if you choose to do so, you could go to prison for contempt."

This note of caution is especially relevant to users who may feel that while thousands have linked to and re-tweeted defamatory posts, it is untrue the law cannot touch them.

"People using social media have to be aware there is no legal impediment to going after someone over a tweet or post," Robinson added.

As if to prove her point, lawyers for one British celebrity are now taking legal action to obtain information about "the unlawful use of Twitter by a small number of individuals who may have breached a court order."

Robinson said though, that the application was unlikely to succeed. "This is more bullying by those taking out super-injunctions. It's not a particularly well thought-out warning shot.

"What these people don't seem to understand is that taking out a super-injunction is like painting a big red target on your back. Everyone's now trying to find out what the story's about," Robinson added.

Max Clifford, a veteran publicist since he was asked to promote a then-unknown band called The Beatles, told CNN that while he does his best to keep damaging stories about clients out of tabloids, one shouldn't get too upset if rumors appear on social media.

If allegations appear on Twitter, he said they do not have nearly the same impact as those published in newspapers, "because it doesn't have the same credibility."

When celebrities are exposed by the media, Clifford said their reactions vary greatly. "Some are distraught, others say 'so what.' But most stars don't want their private lives exposed. And there are very few people out there, let's be honest, that haven't done things in their private lives that they don't want people reading about."