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

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by the Court of Protection against the naming of a young brain-damaged woman whose mother wishes her life-support to be withdrawn.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

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Media

(Junior) IT Systems Administrator / Infrastructure Analyst

£28000 - £32000 per annum + pension, 25 days holiday: Ashdown Group: A highly ...

Sales Engineer - Cowes - £30K-£40K

£30000 - £40000 per annum: Deerfoot IT Resources Limited: Sales Engineer - Cow...

Web / Digital Analyst - Google Analytics, Omniture

competitive: Progressive Recruitment: My client who are a leading publisher in...

Sales Perfomance Manager. Marylebone, London

£45-£57k OTE £75k : Charter Selection: Major London International Fashion and ...

Day In a Page

A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

A History of the First World War in 100 Moments

Peace without magnanimity - the summit in a railway siding that ended the fighting
Scottish independence: How the Commonwealth Games could swing the vote

Scottish independence: How the Commonwealth Games could swing the vote

In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

A writer spends a night on the streets

Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

UK's railways are entering a new golden age

New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

Conchita becomes a 'bride' on Paris catwalk

Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
Pétanque World Championship in Marseilles hit by

Pétanque 'world cup' hit by death threats

This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

Why did we stop eating whelks?

Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
10 best women's sunglasses

In the shade: 10 best women's sunglasses

From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

World Cup final: Messi? Mascherano is key for Argentina...

No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
The true Gaza back-story that the Israelis aren’t telling this week

The true Gaza back-story that the Israelis aren’t telling this week

A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
A History of the First World War in 100 Moments: The German people demand an end to the fighting

A History of the First World War in 100 Moments

The German people demand an end to the fighting
New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

New play reveals what Oscar Wilde said at trials

For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
Can scientists save the world's sea life from

Can scientists save our sea life?

By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

Richard III review

Martin Freeman’s psychotic monarch is big on mockery but wanting in malice