Law Review: ‘Contemptuous’ tweeting – A diverse judiciary – Coppers to get right to prosecute back

What now for contemptuous tweeting and media innuendo in the privacy injunction saga? – Judith Townend

In a precise and incisive blog post, Judith Townend writing on the Informm blog writes:

The BBC Radio 4 Today programme’s legal correspondent, Clive Coleman, reported:

“The posts on Twitter point up what for some time has been a concern that there’s one rule for the mainstream media and little or no rule for individuals publishing in breach of injunctions online.”

But is that a valid concern? The mainstream media has also got away with some heavy innuendo about the identities of the claimants – so far.

Those breaching the orders may well face serious penalties. One leading media law lawyer told me that the view is that people are testing how far they can go with the injunctions.

Sooner or later someone will take committal proceedings or sequestration proceedings, he suggested.

“Once someone loses a lot of money people will think twice about giving information that helps to identify the claimant.”

Reading tabloids recently  – and even some broadsheets – it may seem to the jaundiced eye that celebrities have ‘suddenly’ been featuring in articles even when they have no film, book or other product to punt. There has been a fair bit of innuendo in the press.  In practical terms, the writ of the High Court of England & Wales can only constrain those who publish within the jurisdiction of England & Wales.  Judith Townend makes the important point that mainstream media is advised of superinjunctions.  The rest of us are not.

She states: “A social media user who is aware of the injunction posts the name of someone whose anonymity is covered by the order commits a criminal contempt of court, he explained. Unless they have taken serious steps to conceal their online identity then their identity can be found out by means of a Norwich Pharmacal order.”

Joshua Rozenberg makes the point that if a tweeter is unaware of the injunction, the tweeter cannot be in contempt.  If the tweeter is aware of the injunction – through twitter, for example –  then liability for contempt will arise.  The Spartacus phenomenon… or safety in numbers – where thousands tweet the same information may cause a headache, but, theoretically at least, contempt proceedings could be brought.

It was noticeable on twitter yesterday – when a twitter account revealed information (obtaining countless thousands of followers in a very short time) that a number of regular lawyer tweeters made no reference to the twitter account, nor did they re-tweet.  Indeed, Adam Wagner of The UK Human Rights blog took time to remind his followers about the laws of contempt.  A re-tweet is, of course, a further publication? I repeat again, my cynicism, shared by David Allen Green who takes a ‘skeptical’ stance, that the mainstream media are well aware that the Mosley judgment is being handed down tomorrow – and that judgment may well be most inconvenient for their freedom of speech… or, more accurately, their freedom to increase revenues by ‘dishing the dirt on the shaggers’.  Public interest?  I rather suspect that many who clamour for freedom of speech would be less enthusiastic if their private lives were subject to public scrutiny. I could be wrong, of course.  And, of course, what of the rights of the innocent party – the wife and children of ‘the superinjuncting shagger’?

Injunctions, Twitter and the law

The Guardian’s Organ Grinder blog runs with the story…..So, can the courts stop all this injunction-busting chat on Twitter? And can tweeters be made liable?

Meanwhile.. Lord McNally, a Minister of State for Justice, digs up an old favourite to amuse himself….

The judiciary is becoming more diverse, but too slowly

The Guardian: Judges should be drawn from across our communities. We are trying hard to achieve that, but could do better….

Yes… the judiciary could be more representative of the community… but judges are not politicians, they are not ‘elected’, they are drawn from the legal profession.  the profession is ‘doing diversity’ or, at least doing their best to appear to be so doing, and it will take time.  It is astonishing that we still only have one female judge in the Supreme Court.  That will change in time. 60% of the profession is now made up of women.  Some women may well leave the profession for family and other reasons before being eligible for judicial office. The same’principle’ holds true for ethnic minorities in terms of access to a career in the profession.  The demographics are changing.

The irony is, of course, that with the rising costs of legal education – it is going to become ever more difficult for students from less privileged backgrounds to consider a career in law without taking on fantastic debt – so we may well be ‘sleep walking’ back to the days of a largely middle class, white, legal profession and future judiciary?

What we don’t need is positive discrimination and fast tracking – where we end up with judges who would not have been selected strictly on merit.  That merely serves to undermine the justice  system and patronises those selected. It may well take time before our judiciary is truly representative of the population at large?

And..finally… a retrograde step?

Theresa May hands power to prosecute back to police

The Guardian: Home secretary wants police, rather than crown prosecutors, to make decision in more than 80% of cases

4 thoughts on “Law Review: ‘Contemptuous’ tweeting – A diverse judiciary – Coppers to get right to prosecute back

  1. I’m distinctly uneasy about secrecy in the judicial system as, without transparency, there is a great deal that those of us outside the charmed circle have to take on trust. I realise that many lawyers appear to be taking the line that the media has no business reporting on the sexual misdemeanours of celebrities, but making judicial decisions on the basis of taste strikes me as inappropriate. There is also the issue of damage that will be done by innocent parties from the revelations. Well, that may well be the case, but people are forever causing harm to innocents by their actions – we don’t keep criminal convictions of parents secret to protect families. The responsibility for any collateral damage caused by social misdemeanours is on those that freely got involved. The secrecy of family courts is something about which many people are deeply suspicious.

    There is also another very important point. The role of a superinjunction is, a direct constraint on freedom of expression. In many cases it is a constraint on the freedom of expression of one or more parties to the issue in question. That individual may have a story that they wish to tell – what role is it of judges to dictate what item of truth that somebody might or might not want to tell the world?

    I would, however, draw the line at the media actively intruding into private lives. The use of secret cameras, entrapment or the like should clearly not be allowed. I think we can assume that the Max Moseley situation would fall under that restriction. Also, where there are explicit lines of confidentiality drawn up which somebody has breached, then there is a role for court action.

  2. Steve – there are good reasons why criminal convictions are published; to date I have heard of no good reason why a footballer’s extra marital affair should. Dacre even admitted that the only interest in publishing such stories was to make money (his argument being the free press would end because no one would buy a paper if it didn’t have any sex in it).

    There will always be an injuncted party; if they don’t like a decision they can appeal. I personally have sufficient confidence that a court of appeal headed by Neuberger is not going to roll over to ant vested interest (see his actions in the torture cases).

  3. @sam

    I don’t greatly care if there is a good reason or not. In the interests of free speech the default position should be for any involved party to be able to tell their stories. Only if their are explicit confidential conditions should this be denied.

    As for the “injuncted parties can appeal”, then that might be the case if the party has the money (and bear in mind that judges are quite free to apply their injunctions to the uninvolved – indeed the population at large).

    I don’t greatly care for the judiciary having the power to interfere with freedom of expression except in very specific circumstances. That some footballer or other rich celebrity is able to silence an embarrassing revelation is not sufficient grounds to justify state-sanctioned censorship in my view.

  4. Free Speech is Free Speech whatever the situation and wherever you find it !The laws of libel and slander exist to prevent defamation.Nothing however protects parents from neighbours gossip when children confiscated by the State mysteriously disappear. Any attempt to explain what happened and to justify themselves ,and parents are threatened with jail !

    I really do not understand how any intelligent person with an ounce of compassion can justify legal gagging of a mother whose child has been taken for example for “not engaging with professionals” or for” risk of emotional abuse !.”Many in this situation have even been told (wrongly)that they cannot discuss the situation with their immediate family !

    IMPORTANT !! Article 8 of the human rights act was clearly drafted to protect families from State interference,and it is utterly perverse of judges to interpret it instead as a license to gag parents who have been oppressed by the State !Nowhere else in the EU do judges twist this Article 8 designed to protect the family from “interference from public bodies” into an instrument of persecution and gagging to suppress all protest from parents claiming to be wronged by the State

    It is not a question of “rights “for either families or children.The fact is that the judges are trained to study the intention of those who drafted a new law before interpreting it .The intention was to safeguard the family from interference from “public bodies” not to gag any parent that dared to complain about such interference !Certainly not to put the privacy of a newborn baby that could neither speak nor write ,above the right of a mother to speak out and object to her baby’s removal.

    As long as there is no infringement of the official secrets act everyone should be free to say what they like when they like , without judges and social workers rushing to protect their own deplorable conduct by legally gagging everyone in sight ! Sticks and stones etc …..
    Yes,I know racial abuse is disgusting but making it a criminal offence is an absurdity when applied to petty squabbles between persons of different racial origins…
    We all have mouths so it makes more sense( when no violence is incited) to answer back than call for the police or for lawyers !

    As far as scandals are concerned,Moseley’s activities with 5 “ladies” hardly formed part of his family life that needed to be protected by Article 8 !
    He could have responded in the press to justify his enjoyment of such activities ,and even recommend them to others if he chose, instead of rushing to high priced lawyers !

    To return to the more urgent question of gagging aggrieved parents accused of emotional abuse (or risk of it !) whose children have been taken for forced adoption….Nobody died of emotional abuse(or risk of it !) ,so as a matter of priority the UK “SS” should stop wasting money and time in countless court cases pursuing parents(often in foreign countries to which they have fled) who have never harmed their children and obviously love them judging by their desperate attempts to fight the courts and recover them. .Instead they should give frequent and thorough medical examinations to children at risk of repeated physical harm .That would have saved the lives of Baby p and many others from parents and carers who never have fought in the family courts to recover their children ;They would have run a mile from any court

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