Death by Birdsong: Has Twitter Sealed the Coffin on Britain's Privacy Injunction?

• Citation: Vol. 41 No. 1
• Publication year: 2012

DEATH BY BIRDSONG: HAS TWITTER SEALED THE COFFIN ON BRITAIN'S PRIVACY INJUNCTION?

Christopher Ryan Campbell^*

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Table of Contents

I. Introduction...............................................................................188

II. Privacy Law in the United Kingdom.......................................190

A. The European Convention on Human Rights...........................191
B. Human Rights Act 1998: The U.K. Bill of Rights.....................193

III. Britain's Energizer Injunction................................................195

A. The Grant of Injunction............................................................195
B. The Twitter Breach: The Aftermath of CTB.............................197
C. Aftermath of the Second Decision............................................200

IV. Social Network Sites.................................................................201

A. Privacy Concerns.....................................................................204

1. Provider Created Problems...............................................204
2. Peer-to-Peer Problems......................................................205

B. The Benefits of Social Network Sites........................................206

V. Remedying the Network Induced Privacy Breach..............208

A. Why Social Network Regulation Fails......................................208
B. Balancing in Favor of a Free Press.........................................213
C. Rebalance: Salvaging the Right of Privacy..............................215

VI. Conclusion...................................................................................218

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I. Introduction

"The actions by thousands of people . . . are in danger of making the law look an ass," said John Whittingdale, chairman of the United Kingdom's Commons culture committee.¹ What exactly could inspire such a frank statement? Social network sites like Facebook and Twitter.² To understand why requires a look back to events during the summer of 2011, when a British soccer player, referred to in official records as "CTB,"³ sued News Group Newspapers (NGN) and former Big Brother contestant, Imogen Thomas (Thomas), in British courts. His goal was to prevent the defendants from running a story regarding an alleged affair with Thomas.⁴ The claimant received an injunction but the information was released through a social network site, quickly rendering the injunction largely ineffective.⁵ Prior to the injunction, Thomas arranged several meetings with CTB at which she demanded a number of concessions.

At first she requested 50,000 pounds sterling, which CTB refused to pay. At a subsequent meeting she demanded game tickets, which CTB did provide.⁶ He claimed that he accepted Thomas's meetings for fear that she would sell her story otherwise.⁷ CTB then contacted Thomas to demand that she cease all contact with him, further offering to pay the previously requested sum. However, Thomas increased the sum to 100,000 pounds sterling and warned CTB that journalists were near her home.⁸ Thomas contacted CTB one last time to say that a paper was ready to publish the story along with photos taken of them at the arranged meetings, though she denied knowing how these were obtained.⁹ At this point, CTB filed for the injunction, which Justice Eady ultimately granted,¹⁰ noting, among other

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things, evidence strongly suggested Thomas was blackmailing CTB after cooperating with NGN to engineer photographic proof of an affair.¹¹

At this juncture, CTB's information should have been secure. Yet, by early May, the social network site Twitter was alight with posts about the CTB case and other super-injunctions.¹² One user posted a list of individuals believed to be the anonymous claimants, prompting CTB to begin proceedings against the social networking site in order to identify violators.¹³ Though Twitter cooperated, the online community's response was explosive; an estimated twelve thousand Twitter users posted CTB's identity and involvement within twenty-four hours of the disclosure request.¹⁴ His identity thus thoroughly exposed, Ryan Giggs agreed to relinquish the anonymity designation by late February of 2012.¹⁵ In this instance, Twitter became a vehicle by which individuals bypassed a legally binding, though unpopular, court order designed to protect the privacy of a U.K. citizen and forced private information into the public domain. Amidst these circumstances and the atmosphere of upheaval, Chairman Whittingdale voiced his strongly worded concerns about the effect social networking sites will have on the application and enforcement of privacy laws in the u.K.¹⁶ How can regulators protect the privacy rights of citizens in the face of user-driven media like Twitter? The answer to that question is rather murky.

Some argue that social network sites are the cause of similar online privacy problems and, in circumstances where individuals have not voluntarily posted information, they should have the enforceable right to demand its removal from the internet.¹⁷ Others argue there is no practical way to regulate social network sites.¹⁸ Whether a comprehensive means of adequately regulating social network sites exists is beyond the scope of this

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Note. Rather, this Note suggests that the advent of social network sites has disrupted the balance of human rights as embodied in the U.K. (and similar legal systems) by making it easier for the news media and other individuals to force otherwise private information into the public eye. Dealing specifically with the context of celebrities, this Note reexamines the protections that the U.K.'s privacy law provides and suggests that the current regime should be strengthened in favor of individual rights to privacy rather than to the media's right to free expression.

Part II describes the European Convention on Human Rights (ECHR) and the Human Rights Act of 1998 (HRA), which are the two primary sources used to balance privacy rights and freedom of the press in the U.K., and which consequently serve as the legal bases for the injunction at issue.¹⁹ Part III includes a summary of Justice Eady's holding on Giggs's injunction and additional details regarding the subsequent circumvention of that injunction, which better illustrate the British interpretation of privacy law under the European Convention. This information also highlights the opposing views of the British courts and the public regarding privacy injunctions. Part IV briefly summarizes historic problems with social network sites generally, thus providing a frame through which to understand how social network sites influence the viability of proposed privacy solutions. Part V concludes with an analysis of the most likely source of the U.K.'s privacy woes regarding super-injunctions and points to a potential solution in the form of altered media regulations.

II. Privacy Law in the United Kingdom

The U.K.'s privacy laws are strongly influenced by the ECHR,²⁰ to which the nation is a party.²¹ Because of this influence, any understanding of privacy law in the U.K. first requires an understanding of the relevant parts of the ECHR. Furthermore, certain aspects of the U.K.'s application of ECHR provisions have resulted in public disquiet and political division that may be relevant to a meaningful analysis of the Giggs injunction debacle

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because they signal a sense of longstanding public disquiet regarding judicial application of the privacy law.²²

A. The European Convention on Human Rights

"Everyone has the right to respect for his private and family life, his home and his correspondence."²³ These words, drafted into the ECHR indicate the individual's right to be protected from intrusion into his or her private life. Article 10(1) embodies an equally powerful protection for freedom of expression,²⁴ a right including "freedom to hold opinions and to receive and impart information and ideas."²⁵ This does not expressly grant media services freedom of the press because the statutory language is couched in terms of individuals; however, Article 10(1) is the provision most often used to protect media defendants if defamation or similar reputational claims brought in ECHR member states reach the European Court of Human Rights (Strasbourg Court).²⁶ Both articles serve to protect important rights, but both have built-in restrictions on their applications.

Article 10(2) limits the scope of freedom of expression by providing that:

The exercise of these freedoms . . . may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.²⁷

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When analyzing cases under this paragraph the Strasbourg Court looks to three factors: (1) whether the interference with expression has been prescribed by law, (2) whether the interference serves one of the legitimate aims listed in the paragraph, and (3) whether the interference is necessary to a democratic society.²⁸ According to Article 10(2), the right to reputation, which is protected by Article 8(1) of the ECHR, is a legitimate aim sufficient to limit the freedom of the press or expression in general.²⁹ However, this does not mean that any matter considered private under Article 8 can be blocked from media reports via injunction.

On the contrary, Article 8(2) has its own exceptions that largely mirror the language found in Article 10(2).³⁰ The most relevant portions read, "There shall be no interference by a public authority with the exercise of this right [to privacy] except such as . . . is necessary in a democratic society...