The Problem of Gossip, Rumour, Privacy and Superinjunctions

Super-injunctions are the order of today, with the media obsessed currently over the Twitter breaches which although specifically highlighted in the last 48 hours have been ongoing for the last few weeks ever since the initial rash of reports that there were three injunctions involving a married footballer who had had an affair with a former big brother contestant, a "leading actor's" visit to a prostitute and that a TV actor had an affair with a colleague.  If you want to read the standard commentary then go to any one of a hundred news sites who are foaming to give you the clues to unmask these people (and others including the second footballer who had an affair with model Kim West, a chef who used the process to gag reports of an ongoing tribunal, the TV personality caught in pictures enjoying the company of another celebrity and the actor/comedian who enjoys something more "interesting" in the bedroom) - a good example of such a story is this one in the Daily Mail. A few journalist are actually doing a fair job of analysing the legal position such as Dan Sabbagh's story for the Media Guardian but I'm here to argue something different: super-injunctions are harmful to privacy rather than a positive defence of it.

Why are super-injunctions counter productive?

Let's look at what has happened in the four weeks since the original stories surfaced. Some things have been revealed such as Fred Goodwin had an injunction preventing him from being named as a banker in a story relating to an affair and Andrew Marr had a long held injunction preventing him from being named in relation to a child born of a woman he had had an affair with. What would have happened without these injunctions? The aphorism is today's news tomorrow's chip paper. We would have had a very short splash in the papers about these affairs and then probably they would have been forgotten (footballers and politicians aside news of affairs tends to quickly fade from the memory) - who remembers honestly that Ralph Fiennes split from his long term partner Francesca Annis after a rumoured affair with a Romanian singer (or that he met Annis while still married to Alex Kingston) - if you argue that was five years ago what about this story from March this year? Honestly did you remember them?

The problem of the injunction (super or otherwise) is twofold: (1) It extends the life of the story and (2) It causes anguish to others (in breach of their Article 8 Right). Both these have the same root cause - the human desire for knowledge. We crave what we do not have, what we do not know, but quickly forget these things when we have them. How often have you desired the latest gadget, craved it, and after you have bought it found it quickly relegated to the sidelines as you more on to the next new thing? The same is true of knowledge and information - we always want what we're told we can't have. The injunction makes it forbidden knowledge so we know we must have it. If you knew (or know) who the actor or the comedian is you would know it would have gone the same way as the story from March which I referred to earlier. In fact the actor/comedian story only came about allegedly because he was so obscure and insecure he said to a prostitute the immortal line "do you know who I am?" Daniel Solove knew about this in 2007 when he wrote his book The Future of Reputation: Gossip, Rumour and Privacy on the Internet

Solove noted that one of the core activities of humans is gossip. We all do it. Stereotypically woman gossip in the hairdressers or over coffee while men gossip in the pub. Today we have built a global gossip engine (it's not the World Wide Web more the Global Gossip Gadget. We continually update Facebook with comments about people we know, we Tweet things we know (or think we know - see below), we Blog, we Comment, we Gossip. The problem is gossip is not based upon factual knowledge but about innuendo and rumour, this causes potentially much greater harm than simple facts. The danger is that innocent parties get harmed.

Why are super-injunctions harmful to privacy?

On Sunday a new Twitter account was opened by someone who thought they knew all the facts about current injunctions. I can't tell you who they are or the address of the account. I can't tell you what they said but it looks something like this:
The Redacted Twitter Feed

The problem is they didn't know it all and an innocent party was dragged in. They claimed (and I can report this) that the TV personality caught in embarrassing photographs with another celebrity was Jeremy Clarkson with Jemima Khan. This is not true yet two innocent people have been caught up in a glare of publicity because a third party wishes to deflect publicity from themselves. As Khan tweeted yesterday:
I hope the people who made up this story realise that my sons will be bullied at school because of it. Plus I'm getting vile hate tweets.
This is the crux of the problem. The injunction has not protected the net privacy of everyone involved instead it had moved the privacy invasion from one person to another - it is a re-allocation of the effect and as there is more interest in the story due to the "illicit nature" of the story the net invasion of privacy is magnified. One person (who I cannot name for legal reasons) is protected (for the moment eventually the truth will out) while another has her private life unnecessarily infringed to harmful effect for her and her family. Why should Jemima Khan suffer because another celebrity wants to protect his family? The question therefore is "should judges take into account the possible effects on third parties before awarding such injunctions?"

Jemima Khan is not the only one to suffer. The "well known actor" who visited prostitute Helen Wood and who "kissed like a virgin" has been named extensively on Twitter and Wikipedia. Despite this there are still today people who are falsely naming him to be Ewan McGregor. This was due to the way the media reported the story at the time. They said he was a world famous movie star who was very protective of his family who had done TV work. This led to rumour sites like this one recklessly suggesting Ewan McGregor as he was one of the few internationally famous UK actors who fitted the bill. It never was Ewan McGregor yet his family have been subject to a month of rumour and speculation and because he is famously protective of his private life unlike Jemima Khan he has stayed quiet - which for some people mean it must be true. Another family's privacy destroyed by an injunction.

Of course these two are not the only two affected. Also harmed have been Gabby Logan and Alan Shearer.

I'm going to finish with words I never thought I would write. I agree with much of what Steven Glover has written in the Daily Mail.  I do not agree though that what I argue should be a green light for the mainstream media to do what they like. Bizarrely I may be arguing for super-injunctions over injunctions as if we are never aware of the injunction there is no gossip. The problem is these types of injunctions are rarely watertight and once their existence becomes known the harm to others begins. You cannot ban gossip and gossip based on incomplete knowledge will almost always harm innocent parties. Judges need to consider this (a) in decising whether to grant an injunction and (b) deciding what details about it may be reported.