Gossip frenzy! And the law is left looking an ass

Thanks to the net, stories that aren't remotely true can circulate freely. And no one knows what responsibilities websites bear. David Randall and Andrew McCorkell unravel a legal tangle
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The Independent Online

A week which began with the not entirely accurate naming on Twitter of celebrity litigants ended yesterday with news of yet another injunction taken out by a famous name seeking to stop allegations being published about his private life. He is a Premier League footballer, one of many now seemingly busily redistributing parts of their generous incomes to the country's snazzier lawyers.

It can only be a matter of time before even the most cursory search of the internet turns up his identity, a fact that has generated much confusion and scratching of heads these past seven days. After all, what is the point of an injunction if anyone with an internet connection can discover who you are? In the last six years, a total of 80 have been granted, and there are 12 so-called super-injunctions which ban the media from referring even to the existence of the legal action.

But while newspapers have abided by these actions, online posters have not. Famous names reverberate around the internet, some of them wrong. Among victims of these baseless, and widely disseminated, rumours are the married television sports presenter Gabby Logan, wrongly accused of an affair with the pundit Alan Shearer, and Jemima Khan, falsely said to have been captured in compromising photographs with Jeremy Clarkson.

The resulting online gossip frenzy has raised complex issues concerning privacy, the public's right to know (as opposed to the desire to know), and the extent to which the internet is beyond legal reach.

Is it true that Twitter and Facebook can't be injuncted?

A moot point, although an order was made by the Court of Protection against the naming of a young brain-damaged woman whose mother wishes her life-support to be withdrawn. The order specifically named Twitter and Facebook among the media banned from naming the parties involved in the case. Whether such a ban could be enforced if the order were breached on the social networking sites is another matter. This is due to a combination of the anonymity of the online posters of names and the legal black hole in which internet companies such as Twitter in the US exist.

Is such an injunction enforceable?

It has not been properly tested. In a 2009 defamation case, Mr Justice Eady held that the search engine Google was not a publisher in common law, and therefore could not be held liable for material on its site. But social networking sites are not, like Google, mere listers of material hosted by others.

Are all injunctions being flouted by online posters?

Seemingly, only ones involving celebrities. There are several injunctions in force preventing the naming of people who are not public figures in any sense. One is the brain-damaged woman referred to above; another is of a couple going through a divorce. One of the parties is described as "very wealthy", but no blogger, micro or otherwise, has shown any interest in revealing the identity of her or her estranged husband. It seems that what animates anonymous online breaching of injunctions is not so much "freedom of information" as interest in celebrity.

Why sustain an injunction against mainstream media when anyone who wants to know the parties involved can find out via the internet?

The courts' job is to judge what should be known about someone's private life, and not to weigh the ingenuity of those who want to spread celebrity gossip, regardless, in some cases, of whether it is true or not. And by no means everyone does know who's involved. For weeks, the name of an actor who obtained an injunction has been readily available on the internet, but it was only after he was named on Twitter last Sunday that he confessed to his hitherto-unaware wife.

Who are the online posters who defied the injunctions?

They purport to be campaigners for free speech. One of the few to surface – anonymously – was a blogger who published the text of an injunction taken out by a plaintiff known as ZAM. Unfazed by the judge's opinion that the allegations were defamatory and may well be an attempt at blackmail, the blogger broadcast them because he objected to a bid to "silence us in this way". However, the posters' belief in the free flow of information has not yet extended to: a) non-celebrity cases; or b) their own identities.

Can they be traced?

In principle, yes. With government approval, internet service providers (ISPs) can track the "IP address" of most computers that do not use encryption when accessing the web. An IP address can be tracked to a geographic location and can be used by ISPs to identify the names and addresses of account holders. Loopholes still exist, though, such as how to track someone who tweets from an unregistered, pay-as-you-go mobile phone and the problems posed by hackers and encryption.

Can they be prosecuted?

Again, yes, in principle. In January 2010, Paul Chambers from Doncaster was arrested and charged for a tweet he made when the South Yorkshire airport was closed by snow. His post on Twitter read "----! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!" He was ordered to pay £1,000 in fines and legal costs under the Communications Act for the offence of sending a menacing message. The breach of an injunction online has not yet been tested in court. Ministers are discussing the regulation of social networking sites and looking at the possibility of new privacy laws, but these efforts could still wilt in the face of the lightning-fast, cross-pollinating nature of Twitter, Facebook and blogging on sites hosted overseas.

Is Twitter breaking the law?

Twitter would say no, because it is not a publisher, and is an American firm bound by US law. But Twitter is, in principle, on potentially shaky legal ground since anything that is "published" for mass consumption, whether on the internet or in newspapers, is bound by the laws of the country in which it is posted or printed. As a principle, the firm could be bound by UK law, since internet "pages" are published in Britain. Whether or not Twitter is a publisher could, in principle at least, also be challenged in UK courts, since its user agreement terms are not agreed in UK law. But the Twitter rules and privacy policy are bound by the laws of the state of California on the basis of a waiver signed by users that they are self-publishing and consent to the US jurisdiction.

Twitter says it is not a publisher. Is this sustainable, or could it be tested in court?

Twitter's terms of service say the poster is solely responsible for content, and, in effect it is asserting that it is not the publisher. Its terms include the following which, if asserted by a newspaper, would raise eyebrows: "We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content..." Although this means online information is given less credibility, the extent to which an online service can disown all content it carries does need to be tested in court. But, given the transnational nature of the internet, this may be a long time coming.

Who benefits from injunction-related tweets?

Twitter, mainly. Last week, in the wake of tweets claiming (wrongly, in some cases) to identify injunction takers, Twitter had its record day for UK traffic. On Monday, one in 200 of every web excursion was to the micro-blogging site.

Additional research by Tom Moseley and Davide Ghilotti