Tuesday, 10 May 2011

Legal jeopardy and an epistemological quagmire

It is being suggested today that legal retribution will be had on the person responsible for the InjunctionSuper Twitter account, which the other day revealed - or at least claimed to reveal - details of various celebrities and their superinjunctions. So legally toxic is the whole matter that the mainstream press is apparently unable to name the account. In a video featured by the Independent privacy lawyer Duncan Lamont warns that whoever was responsible for the Tweets "may not have realised the consequences for them" of putting the information online.
Lamont goes on:


The person who did this Tweet is talking of superinjunctions, so this person knows that this is prohibited material. That that that it's true or not, bizarrely, isn't really the point. The point is that they are, knowingly, breaking the criminal law. This isn't the deathknell of injunctions. Perhaps, and unfortunately for one or two individuals it may prove the exact opposite. The very power of injunctions may be about to fall on someone's head.


Mark Stephens, quoted in the Independent's text, makes a similar point:

The person who has committed this contempt of court will be best advised to take their toothbrush because they will probably be going to Pentonville jail. Their emails used to upload this information are being traced, I imagine, as we speak.

Yet Charlotte Harris, a solicitor who used to represent Max Clifford, reassures Twitter users that they were not liable to legal action unless they "directly or indirectly" worked for media organisations which are party to the injunction.

The idea that someone who's taken out an injunction against a newspaper would take action against somebody who is innocently discussing and disseminating what they've heard would be wrong and simply isn't what's happening.


The question is an interesting one. It is easy to discover which names are being bandied about on Twitter (and other online forums) as being people with injunctions. But it is difficult to know which people making the claims have access to the actual facts, which are good at reading between the lines, which are making things up, and which are merely repeating what others have written.

The notorious InjunctionSuper Tweeter is a case in point. The account holder might be in considerable jeopardy, as Lamont and Stephens claim, if he or she is knowingly breaching the injunctions - if the person responsible is a journalist working for a national newspaper, for example. But the inclusion of at least one false statement - the claim that one injunction concerns compromising photographs of Jemima Khan and Jeremy Clarkson - suggests that this may not be the case, and the mystery Tweeter was merely collating and re-broadcasting earlier online rumours.

The false information might have been a double-bluff. On the other hand, none of the names will have come as a surprise to anyone who had been following the #superinjunction hashtag during the previous week. No-one has officially (or indeed unofficially) told me the content of any of these rumoured injunctions. Yet had I been minded to I could have set up a very similar Twitter stream myself. So was the InjunctionSuper leaking privileged information (thereby arguably putting it in the public domain) or merely amplifying rumours that were already out there? And how relevant is it to that question what InjunctionSuper actually knows? Does InjunctionSuper's status as an insider (in the know) or an outsider (making educated guesses) make the difference between whether or not their Tweets - if true - breach the injunctions?

And a related question. By refusing to name the Twitter account - InjunctionSuper - the national press appear to be covering themselves legally. Yet at the same time, their reticence hints strongly (and is perhaps intended to) that the majority of the information being disseminated is true. By this means - and also by publishing a number of ostensibly unrelated and oddly trivial reports - they are inviting people to join the dots. To anyone outside the charmed circle media folk in the know, but who uses Twitter, it is now possible (apparently) to deduce the existence of an injunction covering the people named by InjunctionSuper who are not Jemima Khan and Jeremy Clarkson. It is arguably possible to be "constructively" aware of the existence of an injunction - and of the facts injuncted - by combining these two sources of information: the names on Twitter (put there by someone who may or may not be in a position to know) and the allusions the mainstream press (made by journalists who certainly are in a position to know).

So even if the Tweets were originally made from a position of ignorance - and even though it is impossible to tell from them alone whether or not they are true - the media's attitude towards them seems to confirm their truth. Does this mean that anyone who thus becomes "aware" of an injunction becomes bound by its terms, despite not having been notified either of its existence or of the facts that it is intended to suppress?

Joshua Rozenberg told Judith Townend of Inforrm that you cannot breach an injunction if you are unaware of its contents. "If you tell me that someone is having an affair and I publish this fact on my personal website or on Twitter," he said, "I cannot be in contempt of court if I did not know that a court order existed." Moreover, while interested parties can warn the main media outlets of the content of injunctions, they could scarcely serve notice on the millions of users of Twitter. It would be rather self-defeating if they did.

Rozenberg also writes on his Guardian blog that

the individual who tweeted the names of celebrities who have supposedly obtained privacy injunctions could face contempt of court proceedings if he can be identified - and if he knew that the information he published was restricted by court orders. So, in theory, could those who draw attention to the site - which is why I have not retweeted from it or linked to it from this piece.


But that might not cover the case of the mystery Tweeter - assuming that the mystery Tweeter is not an insider, but has merely put two and two together. Does he "know" if no-one told him? Do I "know", even if he doesn't, because I have accurately read between the lines of newspaper websites? And is either of us legally liable as a result?

The whole area of privacy injunctions - at least for anyone outside the media magic circle - is now deep in Donald Rumsfeld territory. There are known knowns - it is known, for example, that Gabby Logan, Jemima Khan and Ewan McGregor have all publicly denied taking out superinjunctions to protect their private lives. There are also known unknowns, such as the name of the actor that ex-prostitute Helen Wood claims paid her £195 for sex, and who took out an injunction against her and against the press to prevent his name coming out. A name is out there, but most of us have no means of confirming - definitively - whether the name that is out there is the correct one. And there are unknown unknowns, injunctions whose subjects have not yet featured on the Twitter rumour mill. Estimates of the number of such injunctions range from around thirty to several hundred: either way, as Joshua Rozenberg says, "the belief that you can find everything out on the internet is a myth." This fact has two consequences. One is that innocent (by which I mean uninvolved) people are liable to be put in the frame, as happened to Gabby Logan. The other is that it becomes eminently possible to breach an injunction innocently, by repeating information that one knows to be true but does not realise has been injuncted.

The line between known and unknown unknowns is also a slippery one. According to the Telegraph, one injunction being revealed on Twitter "is so strict that the individual cannot be described even anonymously". Someone has taken out an injunction about something: that is all we are told, and all we can be told. Is this someone perhaps the person, named on Twitter, who allegedly "is into BDSM and visits spanking establishments to engage in the whipping of women"? Conceivably it might be. But equally it might not. How could anyone possibly judge?