Mighty oaks from little acorns grow

Who would have thought that Ryan Giggs' sexual peccadillos would cause a minor constitutional crisis in the UK?

Of late, the UK press has worked itself into something of a frenzy over the issue of (the rather scarily named) "super-injunctions". So the "quality" media like The Guardian, The Independent and The BBC, as well as the more predictable Sun and its ilk, have devoted copious amounts of coverage to the rights and wrongs of judicial orders that prohibit not only the publication of the names of parties to a civil action, but also that action's very existence.

'Cause that is what a "super-injunction" is. It is not the same thing as "name suppression" in a criminal case; the issue that some folks from time-to-time get a bit steamed up about here in NZ. Rather, it is an order prohibiting the publication of information that is made in a civil trial on the basis that such a disclosure about a party's involvement in some legal action would be a breach of that party's privacy rights. So while "super-injunctions" raise the same sorts of very general issues as criminal name suppression - the public's "right to know" and the importance of open justice - they do so in a quite different context and with quite different questions to be asked.

Over at Media Law Journal, Steven Price has been all over this issue for a while now - mostly pointing out how OTT much of the press' coverage of the issue has been. As he's said so much on this on so many occasions (as well as knowing more about the basic issues of law that are involved than I do), I'll just urge you to go here and read his collected wisdom for yourself.

But there is one aspect of the most recent manifestation of this debate (or is that furore?) that I do want to comment on. As you may well know from our own media's coverage, Ryan Giggs has just been publicly named as the married footballer that "allegedly" slept with a woman who then went to sell her "story" to a UK tabloid "newspaper". He brought an action to prevent this story being published on the grounds it breached his right to privacy, and while that action is being heard the courts granted an injunction to stop the publication of his name (but not the fact that there was a case being heard involving a footballer). (Actually, this means Ryan Giggs' case was just an "ordinary" injunction, not a "super-injunction" ... but no matter, as such details routinely are overlooked by the media when reporting on this issue.)

At this point, technology enters the picture. The "twitterverse" lit up with "tweets" revealing Ryan Giggs' identity. Ryan Giggs' lawyers then tried to stem this tide by commencing legal action against Twitter, seeking the identities of those who had posted his name (with the implicit threat of coming after them individually). And all the while the old media, including the paper that had bought the story, sat in frustration as they were kept silent by their ethics ... OK, OK their fear of substantial fines (or worse) if they were to breach the court's order.

Until now. Because a Liberal-Democrat MP, John Hemming, got up in the House of Commons and asked a question that explicitly named Ryan Giggs as being the fellow in question. Now, Mr Hemming can do that without fear of subsequent punishment by the courts because he's protected by Parliament's absolute freedom of speech privilege - there are no legal consequences whatsoever for anything said during a proceeding of Parliament. And once he had brought the name into the open, the old media saw the door swing open and piled on through on the claim that simply reporting what has been said in Parliament is likewise protected by privilege.

But it's that claim that I'm not sure about. Because I think it is wrong. It certainly doesn't appear to be the case in New Zealand. Back in 2009, the House's Privileges Committee released a report which stated:

The evidence from the Media Freedom Committee of the Commonwealth Press Union (New Zealand Section) suggested that the media incorrectly believed that it had protection from actions such as contempt of court or breach of statutory no-publication provisions when it reported anything said in the House, provided the report was fair and accurate. This is not the current legal position.

So if a New Zealand paper or broadcaster were to do no more than simply report an MPs words spoken in the course of parliamentary proceedings, it still may be legally liable for doing so if those words breach some non-publication order made by a court. The argument "but I'm just saying what an MP said under parliamentary privilege" does not work to give you the benefit of that privilege.

And although the UK has a slightly different statutory background to us, I don't think that this really changes anything. Nor, for that matter, is the UK Parliament itself; on a number of past occasions it has noted that those reporting on its activities risk legal liability if in doing so they breach a judicial order.

(I've written an academic article on this subject that I can't link to on-line - so for the moment, just take my word on this point. Update: This Guardian article spells out the legal uncertainties surrounding this point.)

So, Mr Hemming's actions in the House of Commons may not have opened the legal door that the media is pretending stands ajar. But here's what it has done. It's set up a situation where should any punitive action get taken against the media, it would be the result of their reporting on Parliament. In a nutshell, it would require a court to seek to punish the newspapers and broadcast media for telling the public what had happened in Parliament. And while it may be legally possible to take such an action - it may be that the publication technically is still a contempt for which there is no defence - the constitutional consequences of doing so would be pretty severe.

So what we've got here is a good old-fashioned arm wrestle between institutions. The courts have been busy trying to balance individuals' rights to enjoy a measure of privacy regarding their personal lives with good old-fashioned free speech. The media has been getting edgier and edgier about these developments - especially where their "right" to sell news to consumers is starting to get crimped. Parliament has been pulled into this mess in part by the news media's griping (all MPs want to keep the media as happy as possible - it's their portal to voters after all) and in part by grumpyness over "European" laws taking over good old-fashioned British ones.

Now it's all coming to a head - and the question is which institution is going to demonstrate that it has the biggest muscles?