The Truth Will Always Out – Super-Injunctions Are Stupid

When I first drafted this, I had the English footballer’s name in it. I’ve taken it out and replaced it with SEF or, Stupid English Footballer. Just to cover my backside so I can go to the UK without possibly being sued. It won’t be hard for any of you to work out who this footballer is. I’ll put his real name back in when a) I get a life b) it looks like I can get away with it.

There’s a marvellous stink going on, and has been going on, over UK court orders known as superinjunctions. There’s a certain amount of schadenfreude about the whole thing because it’s hardly important, but it’s funny when a cover-up is blown.

Super-injunctions are a court order that not only forbids reporting names or facts or whatever it is the litigant is trying to hide, the order also forbids the actual reporting of the existence of the order. The first time super-injunctions became an issue was when one was raised on behalf of an oil-trading company Trafigura. Trafigura were trying to stop details coming to light about an internal report that wasn’t kind about a Cote D’Ivoire toxic dumping episode. They got caught when a question was tabled in UK Parliament under privilege, which blew the whole thing wide open. The media, unsure of the legalities of reporting it all, had an interesting few days.

That was in 2009. More recently, via the medium with which the media has that most troubled relationship, a ‘list’ of other super-injunctions was released. It kicked off with The Sun reporting what are known as ‘blind’ items, leaving the reader to fill in the blanks, which on the Internet is a participation sport. Amusingly, these weren’t even super-injunctions, merely gagging orders. These gagging orders were largely taken out by celebrities to stop the papers reporting things that weren’t exactly in the national interest. The orders mostly involved preventing rutting, married footballers and the people they were rutting with, being identified. A few people were embarrassed, some liars outed and the discussion took on a (carefully worded) life of its own.

Where it got really interesting was when Ian Hislop, the editor of Private Eye, took legal action when he discovered that respected BBC journalist Andrew Marr had taken out a proper super-injunction to prevent details of extra-marital affairs of his own. Hislop argued that Marr’s use of a super-injunction was epic hypocrisy (my words) because Marr himself had criticised them in the past and also criticised gagging orders. Being an active and prominent journalist meant he earned the scorn of his peers and rightly so. He has since stated he feels embarrassed and uneasy about his actions. Sounds more like he’s upset he got caught.

The Internet, never mind Twitter, makes a mockery of legal jurisdictions and it’s almost impossible to police anything that’s said. It’s also worth remembering, super-injunctions and gagging orders are fabulously expensive so are not generally available to the people who would genuinely need them for reasons most of us would find acceptable.

So that’s the history lesson.

I see why some gagging orders are good, where people are actually being protected from identification (like, say the poor woman who made the mistake of bearing Arnold Schwarzenegger’s child) or made the even bigger mistake of being alone in a room with Dominique Strauss-Kahn. Neither of these women could afford gagging orders even if they were legally available. These women were wronged and yet they can’t get protection without paying huge sums to a lawyer to get it.

The marvellous thing about gagging orders taken out by desperate celebrities and craven corporations is that the only thing they are really protecting is their own vanity and their own lies. They’re a lie in themselves and I’m pretty sure there are some quite pointed conversations with the children of these celebrities. The kids have the moral high ground which would be rather uncomfortable for the alleged adult in the conversation, I would imagine.

Footlballer [SEF] made the mistake of, firstly, cheating on his wife after painting himself as a family man for years. Then he got a super-injunction. When the media, and then the Internet, gets a sniff of this sort of thing, a ton of bricks falling on these people would be a blessed release. [SEF], who is apparently good at moving a ball around a field, has decided to sue Twitter and some of its users for breaching the order. Nice try. All he’s done is make himself a household name for being a hypocrite, a cad and a liar. The brilliant @snarkyplatypus tweeted one of the best summaries of anything ever:

‘I see [SEF] has discovered the work of Barbra Streisand’

(referring to the phenomenon amusingly titled the ‘Streisand effect‘)

I’m really enjoying this discussion because it points to an absolutely fundamental fact of life – the truth will always out. The Internet has a marvellous way of smoking it out, whether through the work of Anonymous, dedicated journalists or the herd mentality of groups like 4Chan. I’m not suggesting these methods are always particularly ethical and it would be rather nicer if people didn’t get hurt on the way through, but it’s going to happen. The Sun’s blind items were pretty much a presentation to the world: ‘We know a little bit about this, you do the rest so at some point we can take the credit.’ It’s like crowd-sourcing the legal risk, in the manner of the I Am Spartacus movement on Twitter during the so-called Twitter Joke Trial.

The other interesting thing is the way the law is having trouble keeping up with how to handle these sorts of shenanigans. The Paul Chambers case is a superb example of over-reaction and the timeline of events is extraordinary . The Lord Chief Justice of England and Wales, Lord Judge, compared (with a touch of hysteria) breaking these injunctions with child pornography, a reaction that’s difficult to understand (especially when the super-injunctions that have been uncovered are largely to do with personal vanity).

Difficult until you view it through the prism of legal tradition, some of it going back hundreds of years. The legal profession and the governments who make laws are grappling with the concept of a fragmented jurisdiction. You can publish a claim about someone who has taken out an order on a website not hosted within the United Kingdom and as long as you can’t be identified (or more to the point, have taken steps to ensure you aren’t), there’s nothing that can be done without a gross breach of the principles of freedom of speech (ie, blocking that webhost or in this case Twitter). I see Lord Judge’s problem, and it must be really frustrating, but find it hard to sympathise with the people who are affected (I may be labouring that point, apologies).

Bizarrely, those who try and make a deal of the fact their injunction has been breached should look to Jeremy Clarkson as a role model. It is alleged that he had a dalliance with somebody or other (one of the names that popped up was Jemima Kahn) and he has pretty much ignored it. If he had taken out the gagging order, he neutralised the PR problem by just avoiding it. It’s less interesting than smacking Piers Morgan in the face, but it had the desired effect – the media moved on to get a hold of someone else. Jemima Khan denied it, everyone else tried to scrub their brains clean of the image and that was that.

As Marr discovered, if you can be hanged on your own petard, people will go even harder to uncover the truth. The Internet loves a fight and doing something moronic like suing Twitter is a guaranteed way to send your problem supernova. I was barely aware of [SEF]‘s existence until a couple of days ago, but now I know he slept with a model called Imogen Thomas (I tweeted a link to a ‘story’ run by the online Fairfax papers that critiqued the dress she wore to court this week). Now I know more than I really want to, but if he’d just worn the consequences of his actions, the Daily Mail would have done a job on him and people outside the UK wouldn’t care a jot. As it stands now, no matter how good a footballer he is, he now looks like a complete plonker. Which he is.

I guess the worst thing about super-injunctions is how they may be used. Someone commented on a TechCrunch (one of the sites I used during my research) article that, technically-speaking, Tony Blair could have taken out a super-injunction over his Iraq WMD dodginess. That doesn’t really stand up, because as Trafigura discovered, super-injunctions can be blown open under Parliamentary privilege, but as with Trafigura, the discovery of the super-injunction was serendipitous and that will keep happening. That will be why celebs like super-injunctions – their sex life isn’t in the national interest so won’t come up in Parliament. I hope not.

Attendance at Famous People School should include tattooing of this truism on their forearms: The truth will always out – even if you’re rich.

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