In A Big Boost To European Press Freedom Twitter Puts An End To The UK’s Super Injunctions and The Human Rights Court Rules The Media Doesn’t Have To Give Prior Warning Of Upcoming Stories

Philip M. Stone May 11, 2011 Follow on Twitter

Twitter did in one afternoon what the brightest legal and political minds in the UK have failed to accomplish for years – put a virtual end to the UK’s super injunctions which allows the courts not only to stop an upcoming media story but also prohibits publication that such an injunction was granted! And a day later the European Court of Human Rights surprises just about everyone and ruled that the media doesn’t have to forewarn people they are about to be outed.

The power of social media has come to the absolute forefront in putting an end to years of press inhibitions. The UK courts have basically been making up privacy law as they go along since Parliament has never really addressed the issue. Part of that judge-made law has been that when people find out that a newspaper is about to out them for some sexual dalliance or similar they can ask for a court injunction stopping that publication and prohibiting anyone from publishing that such an injunction was issued.

It’s been called a “rich man’s law” because basically it has been only rich men who have gotten such injunctions and usually it has been to stop publication of having a mistress or going with prostitutes and the like and the cost of such injunctions, usually issued on a Saturday night before Sunday publication, can well come to £100,000 or more. And although a lot of people from Prime Minister David Cameron on down have said that such privacy questions should be subject to Parliamentary law rather than what the judges think, the fact is Parliament hasn’t addressed the issue so the judges had little choice but to do it themselves and the system was set to continue for some time to come.

But now comes along somebody on Twitter who publishes a list of personalities who have taken out such injunctions and assuming you believe what you read on Twitter (one of those said to have been granted such an injunction has furiously denied it – on Twitter) there’s not much the UK government or the courts can do about it. Twitter is not based in the UK, no one knows where the person who filed the Twitter lives, and while it is possible perhaps to go after UK Twitter followers who mention that Twitter in their own messages that figure is already in the millions and that just ain’t going to work.

So what’s the point of asking for a super injunction from now on if someone can find out that information (perhaps from someone at the newspaper that was going to run the story  – a no-no but who’s to know) and publish on Twitter anonymously for the world to read that an injunction was granted. Rather defeats the purpose of having the super-injunction in the first place. Score one for social media and press freedom. But in a sign of how the British media is afraid of those court injunctions some still refused to print the names mentioned on Twitter for fear of being in violation of the court.

The second victory of the week came from much more of an official body – The European Court of Human Rights. it had fast tracked a case that everyone thought the court was going to use to reinforce privacy law when it came conflict with freedom of the press, but it did the opposite. In previous cases the court has seemed to favor Article 8 of the European convention on human rights that guarantees privacy over Article 10 that guarantees press freedom. But in the celebrated Max Mosley case – he had been the head of Formula 1’s ruling body -- it has just ruled that the media does not have to forewarn someone about an upcoming story so giving that person an opportunity to try legally to get the story stopped before publication.

The court has previously ruled in its celebrated “Princess Caroline” case that we all are entitled to privacy when “off duty” so when in 2008 Murdoch’s News of the World printed a story with pictures – even video on the Web -- about Max Mosley’s sex orgies while “off duty”, a UK High Court awarded him £60,000 with the judge declaring those orgies were no one’s business but Mosley’s. But Mosley wasn’t satisfied -- he believed he should have had the right to try and stop the story before it was published if he had known about it, and he wanted the European Court to rule that the newspaper had a legal responsibility to so tell him.

But the European Court, while saying the News of the World was open to “severe criticism” in its handling of the story, also said the case raised an issue that went far beyond the Mosley issue and the court wanted to address “the broader impact of a pre-notification requirement.” It ruled there was nothing in Article 8 that required such pre-notification.

The court left some grey area – whether there should be prior notification in cases where there appears to be no “public interest” in having such information published; the court said the fact that the News of the World claimed there were Nazi overtones to the Mosley orgies made the story of “public interest” – and you can already visualize if there were such “public interest” laws the legal wrangling over that definition and how it applied in individual cases.

While the European Court is perceived as not being too friendly to the media, in fact recent decisions have been much to the media’s favor. In another British case it ruled against the conditional fee structure that allowed lawyers if they won a libel case to have the loser pay their fees in addition to their own lawyers plus a success fee and those total costs in some cases approached £1 million.

Such a system meant that a publisher of a “dicey” story had to consider whether it was worth the possible legal fees and the British media had long said that such success fees inhibit a free press. And the European Court agreed in a case involving super-model Naomi Campbell who back in 2001 sued the Daily Mirror tabloid for writing an article and printing photos of her leaving a Narcotics Anonymous meeting. A UK Court ruled that was not only an invasion of her privacy but the newspaper had also violated the Data Protection Act and awarded her £3,500 damages. But along with that, and after two appeals – the newspaper had won at the Court of Appeals level but lost again at the House of Lords (now the Supreme Court) – the Mirror was stuck with £850,000 in legal fees of which £365,000 was the success fee. The newspaper negotiated it all down to £500,000 but still appealed the success fee to the European Court.

And that Court came down hard against the success fee concept as applied in the UK. “The court considers that the requirement that the applicant pay fees to the claimant were disproportionate having regards to the legitimate aims to be achieved and exceeded even the broad margin of appreciation accorded to the government in such matters.”

And in a Dutch case late last year the court told Europe that if the police wanted to know a newspaper’s source then it would be necessary for “an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources.” A Dutch court had previously ruled that a newspaper had to give up its source when the police demanded it for an ongoing investigation.

So the European Court has been actively protecting press freedom although when there are apparent conflicts with privacy it seems a bit of a no-man’s land. In the Mosley case the court really gave a strong defense of press freedom by explaining, “Any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. Although punitive fines and criminal sanctions could be effective in encouraging pre-notification that would have a chilling effect on journalism.”

And so say we all!

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