After weeks of speculation over the identity of the mystery English Premier League football star alleged to have had an extra-marital affair with Welsh model and Big Brother contestant Imogen Thomas – speculation conducted online but not in the press, owing to a super-injunction imposed by the High Court in London – Scotland’s Sunday Herald gave the game away in its issue dated 22 May 2011:
The print version of the article published a photograph of Ryan Giggs with the eyes covered by a black strip bearing the word “Censored”, and named him in the article. Both name and photo were and are absent from the website version. The Herald staff felt able to do this because the print version of the newspaper is not published, distributed or sold in England and Wales and thus lies outwith the High Court’s jurisdiction. Indeed, the intent of the story was to point out the ridiculous state of current privacy law generally, rather than to point the finger at Giggs specifically – there’s far more in the article about former IMF boss Dominque Strauss-Kahn, currently facing trial on a sexual assault charge, than there is about Giggs.
There have been suggestions that the Sunday Herald might now be held to be in contempt of court for its actions – even though Liberal Democrat MP John Hemming has since named Giggs in the House of Commons, several thousand have done so on Twitter, and even the BBC has followed suit, the injunction remains in force. But it’s hard to see how a ruling of an English court could be sustained in Scotland. There was no equivalent interdict in Scotland for the English gagging order; and, as an editorial in sister paper The Herald on 24 May pointed out:
It is absurd to believe that an injunction taken out in an English court can be enforced globally. If a Chinese judge ordained that nobody in the world could report on its political prisoner Ai Weiwei, would the global media meekly obey? Hopefully not.
There’s a certain amount of blame-shifting going on just now. Politicians have been accusing unelected judges of making up privacy law on the hoof (and attempting to suppress Parliamentary privilege – senior judges have warned that the law is very unclear on that point). Judges have retorted that they are simply applying the law (the Human Rights Act 1998) as it currently stands and that Parliament must legislate if it’s unhappy with the legal status quo.
All most unedifying. But it now seems inevitable that legislation will be tabled in Parliament and that some clarity will at last be brought to a messy and totally unsatisfactory situation. The sooner, the better. Yes, private individuals should have the right to privacy; but not the right to exploit the law for furtive purposes.