Last decade's English libel legal sharks poised to make a new fortune on stupid privacy lawsuits and superinjuctions

With all the noise about superinjunctions, you might think that the recent spate of absurd, censorious "privacy" lawsuits spontaneously arose from the minds of football players, toxic dumpers, and evil viziers of the banking industry. But as Peter Preston writes in the Observer, the architects of these suits are the same lawyers who got rich embarassing England around the world with absurd, censorious libel lawsuits in the last decade, who are now chasing a new business-model as the old one fades away.

For the other defining change of the last 12 years has gradually seen the essential big earner for England's small but richly endowed libel bar sliding away. English libel law, offering heavy damages, huge fees and real advantages to a prospective litigant, has slowly become another victim of the digital revolution. Our courts have traditionally welcomed cases from all over the globe, however vestigial publication to a UK audience may have been. In that sense, the internet seemed to offer still plumper pickings. But American administrations, first at a state then a national level, became disgusted by the justice they saw meted out to their citizens by the Strand. They have decided that no English ruling that infringes the right to free speech can be enforced across the Atlantic. Our own politicians, spurred into action, are seeking to reform the gross imbalances of English libel.

And this decline in libel rewards is fundamentally connected to the rise in privacy speculation since 1998. Max Mosley could have chosen libel, but opted for privacy. Lawyers, naturally, have moved into this fresh, potentially lush area of litigation. Sweeping injunctions - nobody has quite counted them yet - have become the weapon of first resort. Sometimes (as with Trafigura's attempt to gag the Guardian) the case has been too outrageous to endure. More typically, though, the queue of celebrities at the court door has succeeded in buying expensive secrecy for marital misdeeds - even if some, such as Andrew Marr, eventually repented of going to court.

John Naughton produced the handy spreadsheet above, which presents a rough estimate of the cost of trying to sue Twitter over pointless superinjuctions: about two days' wages. As Naughton notes: "In the case of footballers earning anything up to £200k a week, the fees probably look like small beer, so there's clearly room for business expansion here -- for lawyers."

Twitter and WikiLeaks have made a mockery of the courts

• [Csteph]

  Shouldn’t a superinjunctions be called a metainjunctions?

• [Ugly Canuck]

  I am of the view that privacy rights and the laws protecting such need strengthening, not weakening; my objection to these injunctions is not that they exist, but that they are not cheaply and widely available to all.

  Just as divorce in Britain was once , not so very long ago, only obtainable on a “no-fault” basis under the law by the passage of a private and specific Act of Parliament, thereby rendering such unavailable to all but the very wealthy, the solution to me seems here not to abolish the available remedies for harmful speech, but to widen its availability to all.

• [wee_malky]

  None of the injunctions which have been reported contains a valid reason for not only gagging the press but in silencing parties involved in whatever there is to be covered up. Not one. In each case there is a depressing similarity in that the so-called wounded party is a person of means and is able to pay the lawyers from Schillings and elsewhere a handsome fee to twist the judicial system in England and Wales to hide what they have been up to. As soon as any lawyer mentioned ‘blackmail’ the police should have been involved, automatically no exceptions and any false claim for such should be met with the full power of the law. Having your phones tapped illegally is an invasion of your privacy which is NOT the same your mistress telling everyone who she’s been shagging and it NOT the same as getting arrested for a serious crime. These decisions have been made behind closed doors in what is in effect a secret court. A footballer and his mistress in a secret court is a mockery of the law and I am amazed that anyone could see it any other way.

• [Anonymous]

  “Sweeping injunctions – nobody has quite counted them yet”

  It appears that since 2010 there have been two. Which is now one.

  http://www.medialawjournal.co.nz/?p=487

• [Gulliver]

  Maybe in the future we’ll all get menus with the fees for exercising each of our “rights” printed next to them. Maybe they can put a Buy button right on the menu. Then Lodsys can patent it and we can all pay them royalties for trying to challenge their patent in court.

  Ten years ago that would have sounded a lot more ridiculous.

• [Anonymous]

  It’s easy to blame this whole privacy mess on the footballers and lawyers, but the real blame should lie with the politicians.

  By not creating any statutory privacy law, Parliament is allowing lawyers to feel out the limits of the right to privacy under Art. 8 ECHR. If they would make an explicit statement of what was allowed, the whole thing could be cleared up.

• [phisrow]

  Yo Limeys, I’m really happy for you and I’mma let you finish; but Wall Street has the best ‘professional services’ fraud of all time!

• [Robert]

  Thanks Cory for posting on this important issue.

  A point of pedantry: The ‘super’ prefix only applies to cases where the courts forbid reporting that the injunction has been imposed. In the now notorious case involving Imogen Thomas, the judges have said that the chap in question can be referred to as CTB. So it was an injunction, but it is no longer. It is now a bog-standard injunction.

  A second point of pedantry is the idea that judges are making up a privacy law as they go along. While they are making worrying case law, they are not doing so in a vaccumn. A right to privacy exists in the Universal Declaration of Human Rights, the European Convention on Human Rights, and its adoption in UK law, the Human Rights Act 1998. The British Parliament has, however unwittingly, enabled this case law to evolve. Its good that the British Parliament will revisit the issue to iron out these contradictions – but it is not the first time they have dealt with privacy.

  What is important to remember is that not all injunctions are necessarily bad. The Right to Privacy is a Human Right, A Good Thing in the abstract. The breaking of these injunctions is actually a collapse of the rule of law in this area. While I have little sympathy for CTB or any of his adultering teammates, there is a chance this could lead to other injunctions being broken, too. What is to stop a right wing paper, in cahoots with a right-wing, pro-hanging, Law n’ Order Member of the House of Commons or House of Lords(say) to reveal the new identities of child-murderers Robert Thompson, John Venables, and Mary Bell?

  What’s to stop a similar coalition of tabloids and media revealing details they have obtained illegally via phone-tapping or lax privacy policies from an ISP or social network? What if the fruits of the recent Gawker hack or the Playstation/Sony security breach found their way online. Would an injunction be so bad in those cases? Or will we say “well, its on Twitter, so trying to stop the flow of this information is pointless”…

  • [Ugly Canuck]

    “What’s to stop a similar coalition of tabloids and media revealing details they have obtained illegally via phone-tapping or lax privacy policies from an ISP or social network?”

    Bingo!
    Murdoch’s operation was tapping people’s phones, and publishing what they d found out.

    Freedom of the press? more like freedom of the predatory press….

    Sure let “the press” tap the phones of opposition politicians and government officials or anybody in fact whom they don’t like, and then publish to the world whatever they find out…how could that ‘revelation of truth” damage democracy?

    Read vanity fair, to find out more….

    http://www.vanityfair.com/online/daily/2011/05/scotland-yard-admits-to-operational-shortcomings-in-phone-hacking-scandal-investigation.html

    ..but it ain’t “phone-hacking”, it is wire-tapping by private organizations, and if the “press” is “on the side” of one political party, rather than another, it constitutes a direct subversion of democracy, and dirty illegal political action – NOT the “freedom of the Press” – that is demonstrated.

    Privacy rights MUST be strengthened across the Board, and not functionally abolished (though those who would influence all that you do, and monitor all you say, apparently to ensure you pay them what you owe them – in their opinion – would disagree, no doubt) , simply because the founding fathers of the USA could not see the future of surveillance technologies and thus failed to explicitly protect the privacy upon which all liberty and freedom depends.

    Why are people defending the British gutter press and its illegal political activities?

    • [Gulliver]

      …simply because the founding fathers of the USA could not see the future of surveillance technologies and thus failed to explicitly protect the privacy upon which all liberty and freedom depends.

      Not explicitly, but implicitly:

      http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

      The illegal wiretaps you mentioned, in addition to violating several other state and Federal laws, are prohibited by the Fourth Amendment. The First Amendment is not interpreted by the SCOTUS or Congress to protect fraudulent or slanderous speech.

      That said, how the U.S. chooses to balance the liberties of its citizens is not directly pertinent to what the U.K. chooses for itself; I just wanted to clarify the U.S. law on privacy.

      Acknowledging that the U.K. may embody a different legal philosophy, I would like to explain that the reason the American people continue to hold the rights to freedom of speech and freedom of assembly in higher esteem than the right to privacy is because of a belief that it is the former two more than the latter one upon which all freedom and liberty depend. If you allow one group to arbitrate what may and may not be said, it behooves you to be absolutely certain that they will have your best interests at heart in perpetuity because you may find it difficult thereafter to dissent.

      This is why, for instance, I believe that regardless of whether one agrees with the wisdom of WikiLeaks’ actions, it would set a horrendous precedent to prosecute them.

      Please understand that I am only offering my point of view and do not consider it my place to tell the people of the U.K. how to govern themselves.

• [guernican]

  Well, I’m absolutely in favour of the exposure and emasculation of these parasitic buggers, if indeed that’s possible.

  Having said that, the idea of American government deciding that legal decisions made elsewhere in the world having no force in their country is… well, it’s depressingly familiar and not exactly the way I’d choose to pitch this one. UN war crimes exemption, anyone?

  Yes yes, I know it’s not the same thing.

  • [AnthonyC]

    If we’re going to have countries, I can;t see how else you could organize a legal system. If we made a blanket statement that other countries’ legal decisions applied in our country, we would no longer be sovereign.
    I think the worse problem is that many Americans think our laws *should* apply in other countries.

    If you want to try my actions, taken in the US, in the UK, or sue me in the UK, you should need a very good reason- one strong enough the have the US agree to extradite me. Otherwise it is unreasonable to expect everyone to know the law in every country, and never violate any of it. That makes a mockery of any constitutional promises that rights will not be infringed.

    In an ideal world we would have a democratic sovereign world government to settle these issues. We don’t live in that world. International law exists, but no one entity has both the power and the incentive to uphold it.

    • [Gulliver]

      If we’re going to have countries, I can;t see how else you could organize a legal system. If we made a blanket statement that other countries’ legal decisions applied in our country, we would no longer be sovereign.
      I think the worse problem is that many Americans think our laws *should* apply in other countries.

      I had the same thought. It would be unrealistic to expect every country to hold their citizens to the every other country’s various and often contradictory legal codes even when it contravened its own laws. The Federal government’s international hegemony demonstrates exactly why this is a bad road to head down.

      If you want to try my actions, taken in the US, in the UK, or sue me in the UK, you should need a very good reason- one strong enough the have the US agree to extradite me. Otherwise it is unreasonable to expect everyone to know the law in every country, and never violate any of it. That makes a mockery of any constitutional promises that rights will not be infringed.

      Moreover the principles of a representative democracy hold that a legislature’s actions be accountable to the people whom their laws govern, but Americans can hardly hold the Westminster Parliament accountable and the British can hardly hold the U.S. Congress accountable.

      In an ideal world we would have a democratic sovereign world government to settle these issues. We don’t live in that world. International law exists, but no one entity has both the power and the incentive to uphold it.

      Perhaps, although I have my doubts about the wisdom of consolidating that much power in a single institution. Of course, in an ideal world, governments would be open and forthcoming so maybe in that world it would work.

• [Ugly Canuck]

  To physically harm another by one’s actions is commonly accounted as criminal behaviour.

  But to harm the reputation or emotions of another by one’s words, is to be applauded and lauded as an “exercise of freedom”?

  I don’t see it.

  • [Cory Doctorow]

    I think you’ve got your wires crossed.

    British justice was largely silent on phone hacking until popular outcry made Scotland Yard revisit the question (viz civil suits against Scotland Yard over this).

    Meanwhile, the British public has not clamoured at all for greater injunctive powers, super- or regular. They aren’t the result of popular cries for freedom from the invasive press: they’re made by establishment judges in response to expensive petitions on behalf of the rich and powerful by high-priced lawyers. For example, judges worked on behalf of Fred Goodwin, the financier who destroyed RBS and cost the taxpayer billions, and suppressed all reporting of his inappropriate sexual relationships with senior officers at the bank — hiding this information from everyone, including the bank regulators who were supposed to be getting to the bottom of Fred the Shred’s managerial competence even as they opened up the public treasury to bail him out.

    It is possible to simultaneously demand that the tabloid press not wiretap people *and* to demand that nonsensical, far-reaching injunctions not be handed out willy-nilly in secret by judges who are inventing the law as they go.

• [Anonymous]

  Censorious? I don’t think that word means what you think it means.

• [sworm]

  The funny thing is, I’d never even heard of Ryan Giggs before this whole debacle.

• [Ugly Canuck]

  British judges have ever and always “invented” the law as they go; and better their independent decision on this matter, rather than that of the Legislators – this is a matter of individual rights, to be determined case by case.

  How do you think Parliament should, how do you think they would, “legalize” the matters dealt with by these cases?
  By “guaranteeing” freedom of the press ? Or by “guaranteeing” the freedom of THEIR press?

  Better to have the fine grain of Judicial control and regulation of individual instances of harmful speech, than the sacrifice of the privacy of all.

  And Sir Fred was NOT an elected Official, nor a politician running for Office – what he did was in tyhe shade of private life – or would you rather that anybody subject to ANY regulation be open to and for full press disclosure of their sex lives at the “discretion” of the Press, whoever they may be, or wherever they are located?

  The judges in the US, too, “invent” the law on such matters – as ever they must in the specific individual case they are called upon to resolve.

  Bottom line? Judges take some time to come up with the correct balance between the competing rights at play, and what they say only really goes for the case before them. That goes double for cases involving new technologies – but that’s no reason to abandon the determination of individual rights to the discretion of the Legislators, who change with the seasons.

  This is about British law, not US law.

• [Cory Doctorow]

  Judges don’t make up law, they interpret statutes. But the statutes the judges are interpreting here are so nebulous that nothing coherent is coming out of it, apart from, “Spend enough money and you can hide your dirty laundry.”

  Public figures have a reduced expectation of privacy — not just politicians, either.

  You keep raising US law. I don’t know why. You’re the only one to mention it. I’m not American nor do I live in the US. Neither are/do any of the people under discussion. Neither, apparently, are you.

  Regarding how you Parliament could legislate, it doesn’t seem like such a reach to envision a law that says: “Wiretapping people is illegal. Listening to what public figures say in public and watching what they do in public isn’t.”

  Your fine-grained, individual Judicial control has resulted in a series of farcical injunctions that have neither attained their stated goal nor prevented phone wiretapping. Instead, they’ve obscured professional malfeasance by a person under regulatory investigation; they’ve allowed a criminal polluter to hide its deeds from its customers and shareholders; and now they even threaten to gag Parliamentarians from discussing their particulars.

  • [Ugly Canuck]

    Hey, you are the one who first used the word “invent” in this context, in this discussion – I would have said “discover”, and merely followed your (inaccurate) usage out of politeness.

  • [Anonymous]

    Cory: Section 12 of the Human Rights Act details the circumstances in which the courts may grant injunctions which may interfere with the exercise of the Convention right to freedom of expression.

    This is not a “nebulous” Statute; It’s pretty clear that parliament intended for the Act to function in the way that the courts have interpreted it. The parliamentary debate surrounding the Human Rights Act was as rigorous as I’ve ever seen, and they legislated with their eyes open. If Parliament is not satisfied with the situation, they are free to legislate accordingly.

    As regards the “phone hacking” (I hate that term) you conflate Scotland Yard and the judiciary by using the term “British Justice”. It was failures by the Metropolitan Police that has caused the silence, not failures by the judiciary. Yesterday’s ruling in the High Court on the amenability to judicial review of the Met’s decision not to investigate demonstrates that the distinction is of fundamental importance. It’s the first step towards sorting the whole mess out.

• [Ugly Canuck]

  And the press itself may decide and determine what is and what is not “public”, right?

  You’re in the press = public figure.

  Self-defining.

  Look, fwiw, the law may draw the line of “criminality” so as to be only about actions which display a criminal intent, the intent of harming others.

  I don’t….words intended to harm others, I account as being equally as criminal, regardless of what the law’s inability to properly sanction such criminal intent due to the inherent difficulty of proving such criminal intent from mere words.

  My moral judgments, just as easily and equally with yours, can be made regardless of the realities which may from time to time condition the means and manner by which the law, strictly speaking, may address bad behavior.

  • [Ugly Canuck]

    Fixing the above:

    I don’t….words intended to harm others, I account as being equally as criminal, regardless of the law’s inability to properly sanction such criminal intent due to the inherent difficulty of proving that criminal intent from mere words.

    – There, that’s better.

    I note further that sometimes indeed the language used by people DOES rise to the level of prosecutable offense, even in our legal systems.

• [Anonymous]

  “The Lord Chief Justice made an outspoken attack on “modern technology” yesterday and drew a parallel between those who spread lies on the internet and paedophiles who circulate child pornography.” The Daily Telegraph.

  ‘Nuff said.

• [Baldhead]

  At least they’re adapting instead of crying that their old way of life is dying and someone has to protect it.

• [sworm]

  I should add, that it’s illegal to repeat what this MP just said, in the ENTIRE WORLD:

  http://www.youtube.com/watch?v=S6BIdje5sLY&feature=player_embedded

  You have to love the Barabara Streisand effect.