Not so Private Ryan
The news has been dominated by one story this week. Not the visit of President Obama or the volcanic ash cloud but the revelation that the footballer who took out the injunction against the Sun newspaper and Imogen Thomas was …………..
Let me stop there for a moment. Although the name of the footballer has been plastered all over the press and there can’t now be anybody who is interested who doesn’t know how he is, as of the time of writing this article the injunction remains in force which raises the question whether the publication of his name, in fact, legal.
The answer to this question is possibly not as a clear-cut as you may think and nobody (including the Judges themselves) actually seems to know what the position is. The revelation of the footballer’s identity came following his legal team having obtained an order against Twitter requiring it to hand over the names of “Tweeters” who had identified the footballer. This lead to one of the most widespread acts of civil disobedience in the country for years with apparently over 75,000 on Twitter naming him in direct contempt of the Order.
The prospect of a journalist possibly facing imprisonment for this then lead to the MP, John Hemming, naming the footballer in the House of Commons. Mr. Hemming was able to do this because of what is known as “parliamentary privilege”. This allows members of Parliament (the Commons & Lords) to speak freely during parliamentary proceedings without fear of legal action on the grounds of slander, contempt of court or breaching the Official Secrets Act.
But is the reporting of such proceedings covered by such privilege. On the Friday before Mr. Hemming’s revelations in the Commons, a report had been published by one of the country’s leading judges in which he said that the blanket “reporting of parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right”.
The problem is the law has not changed since 1840, more than 50 years before the invention of even the radio. Trying to apply a law almost 175 years old to modern times is always going to be difficult but doing the best I can it seems as though the reporting of “direct extracts” of what Hemming said is allowed. So, it can be reported that Hemming said “with about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison all of them” providing that this is done without “malice”. However, once you go beyond this, it is unclear whether this is protected and so it is certainly arguable that the way in which the story has been reported since his naming in Parliament is in contempt of the injunction and therefore technically illegal.
Given that the identity of the footballer is so well-known, many people have suggested that the continued existence of the injunction is now ridiculous and makes the law “look like an ass”. The reason why the Judge refused to lift the injunction even after Hemming’s outburst in the Commons was to protect Giggs and his family “from taunting and other intrusion and harassment in the print media”. I will leave it to you to judge the extent to which you think this was worked and this now seems to be a case where the law is being “more honoured in the breach than in the observance” to quote Shakespeare.
Another point that the case has thrown up is that any injunction obtained in the English law courts applies only to England and Wales. It was for this reason that a Scottish newspaper was able to publish Gigg’s name even before it was revealed by Hemming. Had Gigg’s lawyers wished to prevent the publication of the story in Scotland, they would have needed to have obtained a separate injunction (or “inderdict” as they are known under Scots law) up there. They didn’t so the Herald was perfectly within its rights to publish the story as it did.