When dealing with unsavory public gossip, especially gossip that is repeated in the media, the new trend for Britain's glitterati is the so-called "super injunction." UK courts have imposed both a gag order and a gag order about the gag order on the enjoined in certain kinds of cases in which the plaintiff raises a privacy interest. Once slapped with such a court order, news publications (both legitimate and salacious) are prevented from publishing anything about the claims being made by the plaintiff. This limitation includes even the mere mention that the publication is gagged at all. In short, the super enjoined cannot gossip about the gossip.
The phrase "super-injunction" was coined by the editor of the UK publication The Guardian while reporting on the use of the tactic by oil trader Trafigura in 2009. Since then, the equitable remedy has been sought by athletes and other celebrities to keep rumors of affairs out of the press. Those seeking super-injunctions rely on Article 8 of the European Convention on Human Rights, which provides that "Everyone has the right to respect for his private and family life, his home and his correspondence."
The practice of handing out these heightened gag orders was much discussed this summer when an anonymous athlete, identified in court papers as "CTB," sought to stanch the proliferation of rumors about a possible affair with a reality TV star, reported in the UK publication, The Sun, to be Imogen Thomas. On May 16, the High Court of Justice, Queen's Bench Division, ruled in CTB v News Group Newspapers that publishing "tittle-tattle about the activities of footballers' wives and girlfriends" is not so great a public interest so as to override the privacy rights of the celebrity. "CTB," later outed on Twitter as a soccer star whose name we will not repeat here was granted an injunction that prevented The Sun from mentioning the star's identity in connection with the court order, as well as any purported facts about his alleged affair with Thomas. The court appreciated the delicate balance that must be made between Article 8 of the European Convention on Human Rights and Article 10 of the Convention, which protects freedom of expression. But in this case, the court ruled, the scales were tilted in favor of privacy, given the inane subject matter.
Having kept his both his name and any suggestion that he had even sought a court order out of the tabloids, "CTB," then took aim at both the anonymous users who have tweeted details about the injunction on the social media service, and at Twitter itself. CTB v. Twitter Inc., Persons Unknown, No. HQ11X01814, was filed on May 18, 2011, in the High Court of Justice (Queen's Bench) in London. The specifics of the complaint are currently unclear.
However, Schillings, the law firm representing "CTB," has maintained that the suit merely attempts to compel Twitter to reveal information about its anonymous users. The number of users who have repeated CTB's identity now number in the hundreds, making this the latest demonstration of the Striesand Effect, i.e., the principle that attempts to squelch information usually lead to the wider proliferation of that information. Commentators in the UK have speculated on whether CTB may be able to succeed in the UK courts in obtaining an order against a U.S. service provider that is directed at learning the identity of unknown Twitter users. If an order does issue from the UK court and make its way across the pond, it will be greeted by decisions in U. S courts that have raised the bar for such attempts under the First Amendment.
If CTB is making a defamation or similar claim against Twitter (although it appears, from CTB's law firm, that he is not), then the company would likely avail itself of Section 230 of the Communications Decency Act should the UK court action result in a judgment on such a claim. Section 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." That federal law principle was recently "internationalized" with the enactment of the federal Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, which was signed into law August 10, 2010. The Act expressly protects service providers from the enforcement of judgments of foreign courts that U.S. courts would be precluded from rendering by Section 230. The SPEECH Act also protects U.S. residents from foreign libel judgments if such claims counter First Amendment principles.
But we digress. Only time will tell the exact nature of the secret lawsuit and the impact on U.S. social media platforms, and whether UK and U.S. law will thwart a British super-injunction invasion.