A reputable Scottish newspaper, yesterday identified a footballer linked to a privacy injunction by the microblogging website Twitter. It claimed in an editorial that the injunction "holds no legal force" in Scotland. Maybe, but the paper is available in England, where the High Court's writ does run. As I write, the online version of the paper does not carry the story.
This is only the latest example of judicial privacy orders being disregarded. Last week the Liberal Democrat peer Lord Stoneham revealed in the Lords that the former chief executive of the Royal Bank of Scotland Sir Fred Goodwin had an affair with a senior colleague before his bank collapsed at the cost of tens of billions of pounds to the taxpayer. In the Commons, the Lib Dem MP John Hemming had previously also used parliamentary privilege to disclose that Sir Fred had been granted a super-injunction – a judicial order whose very existence is supposed to be secret.
The judiciary also appears unable to restrain tens of thousands of "tweeters" who have "tweeted" the name of the footballer identified by the paper. A few days ago this footballer was given leave in the High Court to try to gag Twitter, which is based in the United States. Even if Twitter recognised the jurisdiction of the English courts, it is difficult to see how an action against tens of thousands of tweeters could be sustained, particularly as some of them may be untraceable.
The High Court is trying to enforce the unenforceable. Until now, newspapers, which are generally obedient, had respected such orders, but their patience is cracking because the information is so readily available on the internet or Twitter. Last Friday, Lord Judge, the Lord Chief Justice, expressed surprise that "someone who has a true claim for protection" should be "at the mercy of modern technology". His Lordship needs to wake up to the 21st century.
Judges have made things worse for themselves. If they had not issued so many privacy orders forbidding newspapers to publish, there would probably not have been the reaction we have seen on the internet. By denying newspapers the right to publish what is arguably in the public interest, judges have stimulated an enormous public appetite which only the internet can satisfy.
The judges are their own worst enemies in another way. They have not understood the rising disquiet at the privacy law they are developing out of Article Eight of the European Convention on Human Rights. They believed only the tabloids were irked. In fact, the issue is turning into one of free speech which concerns parliamentarians and the public. And yet last Friday the report of a committee chaired by the Master of the Rolls, Lord Neuberger, was rash enough to challenge parliamentary sovereignty.
If a parliamentarian names the recipient of an injunction, and is deemed not to have acted "in good faith and without malice" (surely a near impossible judgment), a media organisation which publishes his words will be guilty of contempt of court even though they were spoken under parliamentary privilege. Moreover, a journalist who learns the identity of the claimant in a court order, and passes it on to a third party, may be guilty of contempt, as the third party will be if he or she mentions it to a friend.
I don't want to be melodramatic but this smacks very faintly of a police state. The judges reasonably hate to see their authority thwarted. It seems not to occur to them, though, that the privacy law they are making may not carry consent. Notwithstanding Lord Judge's assertion on Friday that Parliament created this privacy law, the judges are in fact developing a principle contained in a law. The higher judiciary has overreached itself by doing this in so rapid and restrictive a way, and now risks undermining its authority by contemplating unconstitutional or impractical methods to enforce its orders.
Should Mason act on his politics?
Last autumn Paul Mason, BBC Newsnight's economics editor, joined in a picket outside BBC Television Centre in a dispute over staff pensions. Did his public championing of a strike undermine his reputation for even-handedness?
Now a possibly even more worrying instance of Mr Mason's political activities has come to light. On 14 May he took part in a Levellers Day march in Burford, Oxfordshire, under the slogan "Jobs! The Future of Employment!" The march takes place annually in commemoration of the execution of three Leveller soldiers by Oliver Cromwell in 1649.
It was a serious political occasion, sponsored by the trade union Unite and CND among others, whose general tenor was strongly anti-cuts. Billy Hayes, general secretary of the Communication Workers' Union, delivered a stirring speech against job losses.
Paul Mason is pictured above holding rather sweetly a bouquet of flowers as he marches with comrades. We may reasonably infer from his presence that he is opposed to the Coalition's cutbacks. That is a perfectly reasonable point of view. The trouble is that he is Newsnight's economics editor, and is supposed to report impartially and evenhandedly on the cuts and their effects.
All reporters obviously have political opinions, but if they promote them publicly they jeopardise their reputation for objectivity. The issue has nothing to do with Mr Mason's beliefs. I would feel exactly the same if his colleague Emily Maitlis took part in a pro-cuts march organised, say, by the Centre for Policy Studies. My, what a hoo-hah there would be! Ms Maitlis would certainly lose her job. Mr Mason, I have no doubt, will keep his.