Twitter And The Law On Privacy

13th October 2009 saw the first use of the "interim injunction to restrain publication of private information" - more commonly known as a "super-injunction". A super-injunction is a legal mechanism to prevent a person from (a) publishing private information which concerns the applicant; and (b) publicising or informing others of the existence of the order. The super-injunction has been utilised most recently by footballer Ryan Giggs and banker Sir Fred Goodwin but the attempt to prevent the publication ultimately failed. However, it was not legally unsuccessful; both the men in question had a super-injunction effectively imposed by the High Court but they were exposed by an anonymous Twitter user.

The highly controversial gagging order first came to prominence through law firm Carter Ruck acting on behalf of oil trading firm Trafigura to prevent the publication of the Minton report - a document exposing the dumping of toxic waste by the company. Obviously, if the supressed information was to be published by a recognised press outlet then they would be liable for a breach of privacy. However, modern day social media gives anybody a platform to publish information without being accountable to the law. As voiced by Lord Inglewood: "the law in this area is a complete mess".

Further concern was voiced by MP Claire Perry of the House of Commons Justice Committee: "[it] is making a mockery of the existing law and we need to make sure that the law catches up with the technology". Whilst no one would disagree that the current privacy law is out-dated, writers and commentators suggest that the problem is deep-rooted, and cannot be solved with a simple change of the law - the modern day bureaucratic procedure of law-making will never match the fast-paced world of viral media.

David Cameron, in April 2011, stated that he was "uneasy" about the notorious super-injunction and launched a Judicial Committee to report on the matter. The report - led by Lord Neuberger MR - concluded that super-injunctions had been used too frequently but made no mention of privacy in regards to internet or `new media`.

For such a high-profile problem there is very little offered regarding a solution. At present, there is no accessible legal remedy for those who pay up to £150,000 to suppress sensitive information for it to be leaked by an anonymous internet user. Take Ryan Giggs for instance: if his lawyers wanted to pursue the user who had publicised his affair they would have to ask Twitter to disclose the information. This raises three difficulties. Firstly, Twitter is a registered American company outside British jurisdiction. Secondly, the lawyers would have to rely on the US courts to compel Twitter to provide the information - highly unlikely given America`s stance on freedom of expression. Thirdly, the original tweet uncovering Giggs` indiscretion was re-tweeted by a further 2,000,000 users rendering any form of legal sanction realistically impossible. This illustrates the overpowering issues that confront the law on privacy.

Since its inception, the super-injunction has been subject to heated debate about the right to privacy and freedom of expression. However, it is naïve to think the courts can outsmart or even keep up with technology. Two years on from Trafigura it appears that the super-injunction may have spared (or at least tried to spare) the blushes of its last embarrassed public figure, nevertheless, it is patently clear that privacy law in the UK is in need of some rapid reforming.