Not-so-super injunctions

The row in Britain over the naming of footballer Ryan Giggs online (and subsequently in Parliament),  in contravention of a “super-injunction”, raises the same issues as New Zealand has experienced recently: can injunctions and other forms of name suppression work in the age of social networking?

British PM David Cameron appears to have accepted the reality of the situation:

“It’s not fair on the newspapers if all the social media can report this and the newspapers can’t,” he said. “So the law and the practice has got to catch up with how people consume media today.”

This is a strong indication that the UK will change its law (or least its policy) on injunctions. In New Zealand, the Government and officials have not yet grasped the nettle. In 2009, the New Zealand Law Commission published a detailed report on name suppression in this country. It noted:

Where information as to the identity of someone appearing before a court is already in the public domain, it will not generally be appropriate to grant name suppression. The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute. [3.65]

However, the Commission did not really address the issue of internet publication. As I wrote at the time:

Yet in many recent cases involving name suppression, that is precisely what has occurred. Twitter, Facebook and other local and international web sites are routinely used to blithely report (or more often, speculate on) the identity of the individual… There is every reason to think this phenomenon will become more and more common… If the law is not to permit exercises in futility, this issue may need to be revisited again before long.

There can be very good reasons for name suppression and other forms of injunctions. But it is not a question of right or wrong anymore. The fact is that such orders can (and therefore will) be made a mockery of, with relative impunity online. An English judge’s issuing of an injunction against Twitter users, and Ryan Gigg’s now-futile attempt to sue anonymous Twitter users, seem distinctly King Canute-esque.