The logical consequence of Britain’s judicially developed approach to privacy eventuated on Sunday when an pseudonymous Twitter account revealed alleged details of six celebrity-related superinjunctions.

The tweets prompted a flurry in the UK media, although British outlets are still not permitted to report the details relating to the superinjunctions. The only one they could report on was the inaccurate one, relating to Jeremy Clarkson and Jemima Khan.

The remainder, judging by the delicacy with which the British media reported them, were accurate. All related to the s-xual affairs of male celebrities or sportsmen.

Superinjunctions are primarily about s-x, and the lack of a British statutory right to privacy. They are mostly used by high-profile British men to prevent exposure of their affairs or other behaviour they worry might embarrass them. The five discussed on Twitter — several British TV actors, Gordon Ramsay, soccer player Ryan Giggs — all relate to s-xual behaviour. They are even used by British journalists: high-profile BBC political interrogator Andrew Marr recently admitted he had obtained one to prevent disclosure of his affair with a colleague. The superinjunction had partly become problematic due to repeated amendments to the Wikipedia entry of his colleague about the affair.

Other superinjunctions have come a cropper as well. One obtained by Colin Montgomerie was rendered moot when American journalists asked the golfer about his affair with a former girlfriend. The British media are still not permitted to report the details of the affair. In March, Crikey revealed the identity of a British financier, Charles Martyn-Hemphill, who had obtained a “hyperinjunction” preventing not merely the reporting of any details of a family dispute involving a trust fund, but preventing the principals from discussing it at all with anyone.

The counter-productive nature of superinjunctions in protecting privacy has become clear with the use of Twitter to reveal the details of several cases in one convenient online source. The orders slap the label of forbidden fruit on each case so suppressed, prompting interest that would otherwise be significantly less or not exist at all; it is unlikely, for example, that there would be any interest in the dispute within the Lumley family relating to its trust fund, except for Martyn-Hemphill’s action in obtaining not merely a suppression order by a legally novel form of injunction that prevents even the investigation of the dispute by the media, let alone its reporting.

Along the way, of course, a woman has been smeared, with Khan complaining she had awoken to a “bloody nightmare”.

Super and hyperinjunctions of course aren’t confined to privacy issues: so sooner did British courts start granting superinjunctions then large corporations realised their value in preventing the media from reporting anything embarrassing or inconvenient, and began applying to use them.

The response to the Twitter outbreak from some within the British mainstream media has been interesting, and smacks ever so slightly of annoyance that social media has done something they couldn’t. Despite directly benefiting from Twitter’s capacity to circulate “forbidden” information in the case of the Trafigura superinjunction, when Stephen Fry tweeted a link to a Paliamentary question The Guardian had been injuncted from reporting, that outlet’s Roy Greenslade called for Twitter to censor names in superinjunctions in order to ensure social media operated to the same rules as broadcast and print media. This rather traditional gatekeeper response, Greenslade admitted, would come with significant problems.

A statutory right to privacy, which everyone from British PM David Cameron down recognises is at the heart of the superinjunction problem, wouldn’t entirely solve the “forbidden fruit” nature of reporting s-xual behaviour, but it would remove the impression privacy is a commodity purchased exclusively by wealthy men to hide their embarrassment. While that’s how privacy in protected in Britain, social media will continue to be used to expose them.

Peter Fray

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