Risk remains in naming privacy row footballer

To name or not to name the footballer, who until yesterday was only publicly known as CTB, that was the big debate in newsrooms yesterday afternoon.

As Twitter users continued to flout a super injunction, News Group Newspapers went to the High Court to request that a judge lift the anonymity order. They failed and the injunction remained.

Later that afternoon, John Hemming MP used Parliamentary privilege to reveal the footballer’s identity and therefore put it in the public domain.

“With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all,” he said.

Arguably this would enable the mainstream press to name him without fear of prosecution. But it’s not so cut and dry, in the latest Report of the Committee on Super-Injunctions, it states:

“It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.”
 
As a result, it took some time for the name to come out, first on Sky News (15 minutes after the statement) and much later on the Press Association wires, BBC and others (up to 2 hours later).

Gateley media lawyer Steve Kuncewicz told How-Do there is no such blanket immunity from a potential Contempt of Court action.

“A lawyer will say if you want to be absolutely safe, don’t publish.  Parliamentary privilege will only be a viable defence to a newspaper if it's reporting in a boa fide sense on proceedings in Parliament and the worry here is that the injunction in relation to CTB still remains in place, so there is always a risk that the Attorney General may decide to take action against someone to make a point.

"However,  I don’t see how taking action against a newspaper in this case would be considered to be in the public interest and enough reason to launch a prosecution, especially given the facts of the case. Although Fred Goodwin was recently revealed to have been behind a superinjunction to restrain details of an affair making it into the press, there's an argument that how he behaved whilst managing RBS is more in the public interest than the details of CTB's sex life - the Court has already said that unless it relates to a criminal offence  or how they perform some public duty then  someone's private sex life will very rarely be in the public interest, even if it is interesting to the public.

News Group returned to the High Court for a third time following Hemming’s revelations, but Mr Justice Tugendhat stood firm, stating:

"It is obvious that if the purpose [of the injunction] was to protect a secret then it would have now failed – but as it is to do with harassment it has not failed.”

He believed that should the footballer’s name be revealed in the mainstream press he would become “engulfed in a cruel and destructive media frenzy.”

As it happens the press decided to name him and he’s on the frontpage of almost every tabloid and broadsheet.

So, where does this leave the press, Twitter and Twitter users? Well Kuncewicz believes it will force a “sea change in how things are done.”

“This has gone from a simple issue of reputation management done badly to something that could serious raise legal and constitutional issues.

“The hysteria on Friday came about when rumours emerged of lawyers ordering Twitter to hand over details of everyone who mentioned his name. However, he’s not going to be able to sue everyone as it’ll bankrupt him.

“The original Tweeter should be concerned though and no doubt CTB’s lawyers will be hoping that it’s a rogue journalist.

A “rogue journalist” would be better than an ordinary member of the public or blogger, as taking anyone other than a professional who knew the risks of breaching the order would be a public relations disaster for the footballer.

Whether his lawyers will even get that far is open to debate.

“Twitter has no assets in the UK, so it’s difficult to see how such an order can be enforced. In fact if they do give up details it does set a precedent on how they do things in the future.”

Kuncewicz added that one person who’ll have a lot of questions to answer is Hemming himself, who had already tested parliamentary privilege last week by stating that Sir Fred Goodwin had taken out a superinjunction.

Needless to say it’s unlikely to be the end of the story and very much depends upon how CTB’s lawyers respond next and whether the Attorney General believes a prosecution is in the public interest.

Something to add? Then leave a comment below or email us now.