On Saturday, I had the privilege of being interviewed live on British television by Sky News about a fascinating clash of culture and law. An English soccer star has sued anonymously to stop the English press from printing his identity. In court papers, the anonymous star athlete claimed that Imogen Thomas, a former member of the Big Brother cast in England, was threatening to sell a story about their affair to an English newspaper. The facts that were to be protected by this lawsuit were true, in large part — the athlete, who had carefully groomed his public image as a dedicated family man, admitted to an affair with Ms. Thomas. The length and intensity of the affair apparently is a matter of some dispute, but the gist of the story appears to be true.
An English trial judge granted the athlete a “super injunction” — an extraordinary but disappointingly common fixture of English common law that gags any member of any English press outlet from disclosing any facts other than those authorized by the court. It applies to any medium under English jurisdiction, whether or not the medium has had an opportunity to argue against it, or whether it is even named in the injunction. Not surprisingly, the first caution my host provided when I arrived at the Sky News set was simple: “We’re not naming any names.”
The need for an American point of view arose because, not surprisingly, the athlete’s name had been revealed by a newer medium — Twitter. If nature abhors a vacuum, the Internet abhors an injunction. The name had been revealed in the Spanish press and by two American publications, and a Twitter member with the name “InjunctionSuper” had tweeted the athlete’s name (along with the names of other celebrities who allegedly had obtained super-injunctions, not all of which apparently were accurate). The athlete’s name also was available within nanoseconds to anyone with an Internet browser — just enter “footballer injunction” into Bing, and dozens of stories reveal the name. But the athlete’s lawyers, the aggressive plaintiff’s firm Schillings, had decided that they must know the identity of the Twitter subscriber who tweeted the identity.
English courts have granted a search order against “Twitter, Inc. and persons unknown.” The Lord Chief Justice commented that “modern technology is out of control,” and he called for those who “peddle lies” on the Internet to be fined.
As I told my hosts at Sky, this is all futile. A Sunday Times poll found that 70% of the English public knew the athlete’s name, and it was printed in Sunday newspapers in Scotland and India. Later in the day, Britain’s Prime Minister David Cameron said that the injunction was “unsustainable.” Nonetheless, if the identity of Twitter user “InjunctionSuper” is discovered and it is found that he or she is an English subject that violated the injunction, contempt of court proceedings could result, regardless of the common knowledge of the athlete’s identity.
Twitter, of course, will resist the order. Its founder and general counsel posted earlier this year that “our position on freedom of expression carries with it a mandate to protect our users’ right to speak freely and preserve their ability to contest having their private information revealed.” Twitter does comply with court process, but only after giving users the opportunity to contest them, including demands for information arising from the Bradley Manning Espionage Act prosecution. Here, it seems unlikely that an enforceable order could arise from the English court, given that Twitter operates entirely from servers in California. United States law would not recognize the athlete’s claim to privacy, much less the validity of an injunction against publication. Given that the athlete had put his “family man” reputation squarely at issue before his fans, the fact that he apparently was carrying on a secret affair with one of the most visible reality-television stars in England would unquestionably be held to be newsworthy. And it is highly unlikely that he would be permitted to proceed anonymously in any event.
The Internet has destroyed the super-injunction. Just as the Washington Post published the Pentagon Papers at great risk after the New York Times had been enjoined against publishing them decades ago, secrets enjoined by courts will come out elsewhere — in a matter of minutes in the Internet age. Ironically, public interest in the athlete’s identity, largely dormant, spiked dramatically when his lawyers succeeded in persuading the court to issue the injunction. He may now be more famous as a litigant than as a star athlete, and his case will be remembered as the one that finally demonstrated the absurdity of the super-injunction. As the editor of the Sunday Herald in Scotland said this morning, “It seems odd thousands of people can name him online, but if a newspaper states the truth it’s not allowed.” Precisely.