David Allen Green

A critical and liberal look at law and policy

Syndicate contentRSS

Is it the Sun what lost it?

An alternative view on the Giggs injunction.

The Sun can publish the name of Ryan Giggs, and so can we. So can, it would appear, over 70,000 Twitter users. And we can all connect Mr Giggs to Imogen Thomas and the allegation of an affair.

As it stands, the Sun cannot do much more than that. The terms of the injunction, which is still in place, would appear to prohibit the Sun from publishing the details of the alleged relationship, rather than just the fact of its existence.

But it is the details which make the "kiss and tell" commercially worthwhile: the information for which the notorious chequebook is used. The Sun, previously in a position where it was at a disadvantage to Twitter users, is now on the same footing as any other Twitter user. However, it cannot print the account of the relationship it would like to because it is injuncted, and Twitter users cannot because they simply do not know. And the Sun is unlikely to share that information.

Some media lawyers are now wondering whether the Sun has won any significant victory after all. The internet and a foolish MP may well have assisted in removing the anonymity of this particular injunction; but it may be that the Sun has still not gained any commercial advantage, and they have been saddled with the high legal bills as well.

This may be media lawyers just being optimistic about a bad outcome; but one must wonder how often a tabloid will mount a similar exercise again if, as it now looks, they are ultimately still unable to commercialise their story.

 

David Allen Green is legal correspondent of New Statesman

 

 

30 comments

Matthew Taylor's picture

Tried posting a couple of times, but it gets disappearing into the ether!

Anyway, the analysis about the Sun is probably right, but it's at a different level from NGN's objectives.

David Banks's picture

Barny.

The sponsors pay them because they play well. That's all.

Their image only comes into it when they get caught out and PRs advise it might tarnish the product.

As if anyone chooses whether or not to buy a razor blade on the basis of a footballer's alleged infidelities.

Roy's picture

'Foolish MP'? That's a bit unwarranted? Speak for yourself...

Yonmei's picture

"The point that has apparently been lost in the media fury is the Imogen Thomas was trying to BLACKMAIL Mr Giggs. "

Is there any evidence whatsoever of this, beyond Ryan Giggs claiming to a judge that he wanted a superinjunction for that reason? Since he would have had to give a reason, other than just "I'm a rich famous man, I should get to have sex with any woman I like and no one should get to write about it and embarrass me in front of my wife and children."

The original Sun article quoted Thomas telling their reporter to eff off and leave her alone, her private life was none of their business, she was at this hotel to meet her mother, etc. Not the actions of a blackmailer, but of an ordinary person without the money to buy a superinjunction.

Lloyd Jenkins's picture

@ jake

Can you point me to the judgement where the judge 'declared blackmail'? From what I've read the strong possibility of blackmail was one of the reasons for the -temporary- injunction, but there was no final judgment on that point (i.e. it will be decided on in the trial).

hugh markey's picture

Mr Bumble, Dicken's Beadle, spoke volumes when he claimed the law was an ass if it expected a poor husband to keep his wife in tow.
We can see quite a few battles coming about as a result of social networks breaking the Gordian Knot of English Law; and any other kind of legal restriction come to that.
Societal advances steam-roller over laws designed for another time. Legislation had to be hurriedly introduced to cater for the effects railways and road traffic had on society - dead and alive.. We think the same may be claimed for racial crime. Even the telegraph and the postal services changed things.
Now it's the turn of the internet. Everybody saw this coming. Hoped it would go away.

Call Me Irresponsible

jaded1's picture

If he had come clean this story would have gone away. Arsene Wenger got away with his affair as he simply ignored it.

Simon Calvert's picture

@Lloyd Jenkins check this link out http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html

@Jake the point is that you and I can go about our business with fear of the press reporting on it.. so it goes without saying that it is because he is rich and who he is will be the reason that the press will target him.. Are you saying that all rich people are fair game?

Simon Calvert's picture

To amend the comment above I meant to say 'without fear of the press reporting it'

hugh markey's picture

Footballers and alluring ladies do not meet at the local pub, supermarket, or anywhere within the domestic sphere. Even the golf links.
Somebody must go on the prowl.

Ambush

Iden's picture

The point that has apparently been lost in the media fury is the Imogen Thomas was trying to BLACKMAIL Mr Giggs.

This is the only reason an injunction was granted: to prevent a greater crime from being committed.

One thing's for sure though: footballers need to realise that women who get their tits out for a living or featured in a reality TV show probably aren't the most discrete of sexual partners.

jake's picture

Why foolish? By taking action against people for contempt for announcing what the judge (and yourself) described as not the point of the injunction, and something that could easily be found out, he changed the nature of his case; it went from being about mere tabloid gossip to an attack on free speech and natural justice.

jake's picture

Also, many of the twitter users are abroad and/or foreign. Were they foolish? Were they in contempt? This is a poor example of misuse of injunctions, but the Trafigure case was clearly an abuse, as are many others. As is the notion of absolute privacy, for the rich only.

David Banks's picture

I would be really interested in seeing the ABC figures for the paper and their web stats.

Especially given that when the name did break and everyone had a go at it, The Mirror's 'Naming Private Ryan' was a far more attention-grabbing front page and so more likely to pick up casual sales than was the far more pedestrian Sun, whose story it was.

I think judges are taking some convincing that the details of sexual relationships, no matter how fleeting, are in the public interest.

I also think the argument that footballers are role models and if they do have extra-marital affairs they must be exposed is looking a little worn.

David Chiverton's picture

The Sun seems to be moving on it anyway, if todays splash isn't partly an account of the relationship I don't know what is.

Adam Wagner's picture

I see this as a victory for The Sun and the rest of the press. They have strung out a story which would have lasted a few days to many months.

The narrative has developed from "footballer sleeps with reality TV star" (yawn) to "courageous journalists and Tweeters fight Kafka-esque court secrecy and doddery judges to expose iniquity" (hooray!).

If this shift can be achieved each time a celebrity tries to protect their identity, then it will be worth the legal bills.

It wouldn't surprise me if a PR agency has already advised its clients to take out a privacy injunction in order to generate additional publicity.

Simon Calvert's picture

Does the Jake who commented really understands what is at stake? Lets be clear, Giggs was targeted because of who is and the commercial value of exposing him. He has a right to defend his privacy, it is not because he is rich that there are different rules, it is because he is a victim of a potential blackmail and definitely a kiss and tell story by Imogen Thomas.
This rhetoric that because he is rich there are different rules is obtuse and often made by people with no understanding of the matter.

Martin Moore's picture

I can't help but think this does represent a substantial challenge to the idea that the balance between privacy and public expression should be judged by reference to the public interest - which was inevitably leading to a fewer celeb kiss and tells. It'll be v interesting to see which footballer will be next to go for an injunction

Phil Dando's picture

If we are talking money though, you have to weigh up the financial damages to Ryan Giggs as well.

I would assume his brand and commercial appeal have been more damaged by the SuperInjunction story than they would have been by the original affair story.

Whilst this may not be a concern to some, anyone who makes even a partial living being a commercial entity, may well be thinking it is simply not in their financial interest to fight the press.

So Footballers and TV Celebrities are fair game, Bankers and F1 Bosses may still fancy their chances.

Anomalous's picture

I agree with the author, the press have won the battle to name Giggs and generate a story that can sell (even though they were prevented from discussing the lurid details provided by the kiss'n tell whore), but they've ultimately lost the war. Parliament will undoubtedly use this case as casus belli to enact a privacy statute that removes any criticism that the Judges are making up privacy law as they go along and prevents any unwarranted harassment that infringes the Article 8 rights of citizens, especially where there is no public interest issue.

The Press were turkeys voting for Christmas.

Steve Jones's picture

One might imagine a judge thinking something along the lines of "a combination of the Twitterati, a fixated MP and some strongly suspected leaking by tabloid journalists may have conspired to make us look like monkeys, but I'll be damned if I'll let some down-market scandal rag make any money out of it. So there Rupert Murdoch, take that".

Of course judges would never let personal feelings intrude so it would never happen...

foowzkaa's picture

"One might imagine a judge thinking something along the lines of "a combination of the Twitterati, a fixated MP and some strongly suspected leaking by tabloid journalists may have conspired to make us look like monkeys, but I'll be damned if I'll let some down-market scandal rag make any money out of it. So there Rupert Murdoch, take that"."

That may be the rumoured "missing fourth paragraph" of Tugendhat's judgment upholding the injunction ;-)

Lloyd Jenkins's picture

@Adam Wagner-

Can they continue to rage about injunctions forever without their readership getting bored? I hope not.

Robin Levett's picture

Probably a silly question, but why does the Trafigura case always get trotted out (see jake's comments) whenever privacy injunctions are discussed? It's totally irrelevant to the position, havening beend ecided on legal principles far older than the 1998 HRA.

Carl Gardner's picture

I agree about the "missing fourth paragraph". It's difficult not to see some judicial bloody-mindedness in the maintenance of this injunction. Mind you, Tugendhat J did mention intrusion and harassment, didn't he, and we haven't seen the terms of the order, so it may well have effects regardless of what's published.

I think where this debate goes may depend on what the footballer does now. If at some point (after Saturday, say) he came out in public with his side of this story, and won public sympathy, that could change views considerably in favour of privacy law and against newspapers.

Barny's picture

@ D Banks

'I also think the argument that footballers are role models and if they do have extra-marital affairs they must be exposed is looking a little worn.'

Not when they get paid by sponsors on the back of the fact they are perceived as role models.

VacillatingDichotomy's picture

@David Allen Green

I don't see the Twitter users as being in contempt of the law. I see them as having contempt for a law that exists only to conceal the wrongdoings of the rich and powerful. Nobody's going to get a superinjunction to prevent papers from telling the worls that they've cured the common cold, are they?

Also - the tabloids are dead. They're irrelevant in this internet age, so you may as well lay off them. Those who still buy them won't be convinced by your words, and the rest of us already know.

VacillatingDichotomy's picture

Or as the kids say these days - "obvious statement is obvious."

Simon's picture

With respect, David, a lot of your twitter followers pointed this fact out to you when you went off on a bizarre rant claiming we had all done murdoch's evil deeds for him. We argued it may have been a small victory for them on the surface, in substance it highlighted their impotency in the modern world of social networking. Now you appear to be entertaining the idea? Change of heart?

jake's picture

@Simon Calvert He has a right to privacy the same as everyone else, but only people like him can afford it. The press is behaving appallingly, but the way to deal with this is through a new independent regulator with teeth, not by the misuse of laws intended for other purposes (temporary so as not to prejudice a trial). And anyway, the judge has said the point was not to protect his privacy. Giggs crossed a line when he attempted to ID twitter users, and natural justice was not upheld when the judge declared blackmail (with the implied blackmailer) without the small detail of a trial. This injunction is about something that is not in the public interest, but that is not true of all - such as the building company director injunction or the Trafigura case, and even Andrew Marr to a lesser extent.

Latest tweets