The Lord Chief Justice made an outspoken attack on "modern technology" yesterday and drew a parallel between those who spread lies on the internet and paedophiles who circulate child pornography.
Lord Judge called on society to bring "under control" those "who in effect peddle lies about others" online. He said ways had to be found to prevent the misuse of modern technology, just as ways had been found to stop the circulation of child pornography, or at least to "hunt down and prosecute" those responsible.
The comments came as it emerged that a footballer, referred to only as "CTB", has issued proceedings against Twitter to disclose the identities of users who broke an injunction by publishing his name online, along with the names of several others who have taken out gagging orders.
The footballer has obtained an injunction against The Sun and the Big Brother contestant Imogen Thomas. The media lawyer Nick Armstrong, of Charles Russell LLP, said the action was "the first concerted attempt to deal legally with the way social media has of late been used as a vehicle for gossip and supposed 'information' in an apparent attempt to undermine or evade the authority of the High Court."
Speaking at the publication of a report on super-injunctions at the Royal Courts of Justice, Lord Judge said: "I'm not giving up on the possibility that people who in effect peddle lies about others using modern technology may one day be brought under control. It may be through damages; it may even be through injunctions to prevent the peddling of lies," he said.
He argued that, in applying privacy law, the courts should treat newspapers and broadcast media differently from new media because the public knew that "modern technology is totally out of control and everybody can put anything on it". The Master of the Rolls, Lord Neuberger, who led the committee on super-injunctions, described reports on "the web" as being "often very inaccurate indeed". The internet, he said, was "not a reliable place".
The comments of the judges provoked concerns over the judiciary's understanding of modern media. Padraig Reidy of Index on Censorship said: "Lord Judge's comments merely highlight the false dichotomy drawn between 'mainstream' media and online social networks."
Steven Barnett, professor of communications at the University of Westminster, said the judges would be criticised for their use of language but agreed that something needed to be done to tackle those who "maliciously" break the law online. "Those who deliberately and systematically attempt to undermine the decisions of the courts should be sought out and brought to justice," he said. "But the judges should avoid notions like clamping down and other Soviet language which doesn't do them any favours."
Lord Judge also criticised MPs who use parliamentary privilege to "flout a court order". Appealing to the media, Lord Judge said: "It is of course wonderful for you if an MP stands up in Parliament and says something which means that an order of the court on anonymity is breached. But you do need to think whether it's a good idea for our lawmakers to be flouting a court order just because they disagree with the order or with the law of privacy which parliament has created. It's a very serious issue."
The comments follow a statement in the House of Lords by Lord Stoneham, acting on behalf of his fellow Liberal Democrat peer Lord Oakeshott, revealing that Sir Fred Goodwin had a gagging order to prevent the disclosure of an affair with a colleague. Lord Judge and Lord Neuberger are to meet the speakers of both Houses to ensure that Parliament and the courts respect each other's province.
The much-anticipated Report of the Committee on Super-Injunctions challenged the notion, widely reported in the media, that the number of all-encompassing gagging orders was growing rapidly. Judges had been accused by the media of creating a privacy law by the back door. But the report said that since a case involving the England footballer John Terry in January 2010 only two super-injunctions had been upheld, one of which was overturned on appeal.
The report said there had been an earlier growth in the use of less restrictive "anonymised injunctions" which had "sometimes been more widely used than is strictly necessary". But Lord Neuberger took the view that with the Terry case "a line was drawn in the sand". The report said "real change has occurred" and that parties "are not generally applying for" super-injunctions.
The committee has recommended that new procedures be introduced to enable the media to be forewarned about applications for injunctions. The Ministry of Justice is being advised to collect data to monitor the use of injunctions by the courts.
Key points of the report
*Since a case involving John Terry in January 2010 there have been only two super-injunctions under the tight definition of Lord Neuberger's committee
*The report highlighted 18 other injunctions that have since been granted and said that reasoned judgments of all the cases were publicly available
*No super-injunction "could conceivably restrict or prohibit" parliamentary proceedings, despite media claims to the contrary
*The media is to be given prior notice of application for injunctions and such hearings, where possible, will be held in public
*Media reporting of parliamentary proceedings may not attract qualified privilege if it breaches a court order
*The Ministry of Justice should collect data to monitor the use of injunctions by the courts.