The Great British Battle Between Privacy and the Press

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Nigel Roddis / Reuters

Manchester United's Ryan Giggs, on May 24, 2011

It was the final act in what Britain's Daily Mail called "one of the biggest acts of civil disobedience in modern times." Chafing under a court order that barred the press from naming a top player in an English soccer club who was alleged to have had an affair with a reality-TV star, Britons took to Twitter. By May 21, details of the affair had been leaked so widely on the Internet that over 50,000 users had tweeted the name of the player: Manchester United midfielder Ryan Giggs. By Monday, a member of Parliament felt the situation so absurd that he named Giggs in a parliamentary session, knowing full well that under an 1840 law granting parliamentary privilege, the courts can't restrict MPs' comments in Parliament — or the publication of those comments. So British media outlets were free to splash headlines about Giggs' alleged infidelity, breaking the worst-kept secret in sports.

Britain's privacy law is one of the most protective in the developed world. It is also one of the most immature. Since the law came into force in 2000, celebrities have been able to obtain injunctions that prevent the publication of personal details ranging from carnal indiscretions to more serious issues, as long as the courts agree that the details violate their right to privacy and aren't matters of real public interest. In some cases, so-called super-injunctions prohibit newspapers from even acknowledging the existence of the court order.

But while Britain's mainstream media have been reluctantly inhibited by these laws, the cacophony of new media has proved almost impossible to police. In the Giggs case, various judges have suggested that Twitter users could be in contempt of court — but how to prosecute tens of thousands of people, many of them anonymous? Giggs has sued Twitter for the identity of the user he believes was the first to leak details of his affair, but obtaining information from the California-based company is a jurisdictional nightmare. Speaking about the thorny task of balancing a right to privacy with a right to free speech, Prime Minister David Cameron on Monday admitted that Britain should review its privacy law, saying that "it is rather unsustainable, this situation where newspapers can't print something that everyone else is clearly talking about."

According to Judith Townend, a doctoral researcher at the Centre for Law, Justice & Journalism at City University London who is putting together a history of British privacy law, the use of injunctions in Britain first entered the spotlight in 2009, when it emerged that the oil-trading company Trafigura had obtained a super-injunction that blocked newspapers not only from reporting on the company's dumping of toxic waste off the coast of Ivory Coast but also from reporting that such a ban on coverage was in place. The controversy came to light when Labour MP Paul Farrelly, who felt the injunction violated the public interest, raised the issue in Parliament. With the debate over freedom of the press heating up again now, British politicians sympathetic to the press's complaints have begun using the same parliamentary-privilege loophole to release other restricted information, including the fact that former Royal Bank of Scotland chief executive Sir Fred Goodwin, who oversaw the bank during its disastrous performance in the run-up to the financial crisis, had taken out a super-injunction barring the reporting of his extramarital affair.

The intervention of MPs, however, has resulted in constitutional wrangling over the separation of powers. When the Liberal Democrats' John Hemming revealed in Parliament on Monday that the injunction-wielding soccer star was in fact Giggs, House of Commons Speaker John Bercow rebuked the MP for "flouting the courts." That echoed the sentiment of Britain's most senior judge, the Lord Chief Justice Igor Judge, who a few days earlier had criticized MPs for invoking parliamentary privilege when breaching privacy rulings. "You do need to think, do you not, whether it's a very good idea for our lawmakers to be flouting a court order just because they disagree with it or because they disagree with the law of privacy," Lord Judge said.

To help avoid such conflict, a committee on injunctions, led by another senior judge, released a report on May 20 suggesting that media organizations should be told in advance about applications for injunctions affecting them so they have time to challenge a gag order. But such a step would lead to costly court proceedings. And it would do little to constrain the users of social-networking sites.

Around the globe, the struggle to balance the right to individual privacy and the right to a free press has been complicated by the Internet's muddying of the definition of press. In Britain, the division between the two competing rights is particularly wide. The country has some of the most aggressive and gossip-hungry tabloid newspapers in the world, and it also has judges who seem willing to balance the tabloid culture with relatively draconian privacy rulings.

In the U.S., by contrast, many states have strong privacy laws, but they are loosely enforced because the U.S. media are, on the whole, more likely to self-censor — something that baffles many British journalists. George Brock, a former editor at the Times of London and now director of the journalism school at City University London, remembers watching, with "my mouth wide open," the U.S. media voluntarily withhold information about presidential candidate John Edwards' extramarital affair — despite the widespread Internet rumor. "In a British equivalent, there would have been very little reticence on the part of even mainstream publications to pursue that story aggressively," says Brock.

But while British newspapers are constrained by the threat of fines if they breach privacy law, most Twitter users are confident that they can post with impunity. Right now, it's clear that, "with about 75,000 people having named Ryan Giggs on Twitter, it is impractical to imprison them all," as Hemming said in Parliament on Monday. That may be true, says Joshua Rozenberg, a British legal commentator, but as British privacy law matures — and as new media outlets like Twitter come under increased scrutiny — the Internet's cloak of anonymity could be lifted. "Just because it's the Internet and just because you think you are anonymous, you can't be sure that in the future there won't be some form of technology that allows courts to find out who you are, or perhaps some legal mechanism that can force Twitter and other sites to reveal your identity," he says. "I'd offer a word of warning to Twitter users breaking privacy laws: Be careful."