The superinjunction obtained by England Captain John Terry was overturned on Friday – and the case raises some interesting issues (cross posted from John Terry: another nail in the superinjunction coffin):

• Ecen when the superinjunction was in force, you could find out about the story on Twitter and Google – both even promoted the fact of Terry’s affair – via the Twitter trends list and the real-time Google search box.
• No one got the difference between an injunction and a superinjunction – the former banned reporting of Terry’s alleged affair, the latter banned revealing there was an injunction. They weren’t necessarily both overturned, but there was a widespread assumption you could say what you liked about Terry once the superinjunction was overturned. This wasn’t necessarily the case …
• The Mail and Telegraph seemed to flout the superinjunction – as did the Press Gazette which decided if wasn’t bound as it hadn’t seen a copy. This seemed risky behaviour legally – which makes me wonder if the papers were looking for a weak case to try to discredit superinjunctions.
• This superinjunction should never have been granted. What was the original judge thinking?

Google and Twitter ignored the superinjunction

The superinjunction was overturned at about 1pm or 2pm on Friday. Needless to say, the papers had a field day over the weekend.

But if you wanted to find out the story on Friday, it was relatively simple to do so. I typed John Terry’s name into Google on Friday at about 11.15am – long before the injunction was lifted – and saw the screenshot, above.

Google’s real-time  search box revealed tweets about John Terry and Wayne Bridge (and there were some giving full details of the affair – including the stuff that didn’t come out until Sunday). Later on Friday, Google pulled the real-time search box – whether this was algorithmic or for legal reasons, I don’t know. But if, spurred on by the clues Google was offering, you typed both Terry and Bridge into Google or Twitter search, and it was simple to find the full story.

And by Friday lunchtime, both John Terry and Wayne Bridge were trending topics on Twitter, raising the profile of the issue. If you clicked on either to see what was being tweeted, you’d have found out about the affair instantly.

Shortly after, a judge ruled there were no grounds for the injunction, super or otherwise.

Guardian links to Twitter search for John Terry

As an aside, I noticed that the Guardian, in its coverage of the superinjunction, even included a link in one of its pieces to a Twitter search on John Terry.

They’ve removed it now (well, I can’t find it anyway and probably for the best. You should either have the balls to run the full story or not. I don’t think publishing a link to a twitter search is a reasonable half way house.)

Confusion still reigned

Once news that the super injunction had been lifted, no one knew (or perhaps cared) where they legally stood on Friday afternoon (as I’ve pointed out before about blogs and reporting restrictions).

It was reported that the superinjunction was lifted – but not whether there was a separate injunction relating to the facts of the case (ie could you report that JT had obtained an injunction, but not say why?).

Despite this, everyone went ahead and shouted about it all over the internet. If there was a separate injunction, it was finished.

You can see the confusion in the comments on this Guardian story from Friday afternoon

Seastorm: I’ve no interest in gossiping about EBJT, but I am a little confused….is the paper concerned now allowed to go ahead and publish the allegations?

Busfield (replying to seastorm): The judgement means that we can now report that there was an injunction. The judge then says that the newspaper concerned will have to make its own assessment of the risks involved in publishing whatever the allegations may be, which will involve considerations of the laws relating to privacy and defamation.

Gooner UK (replying to seastorm): Nope, the removal of the superinjunction means that newspapers are allowed to publish the fact that an injunction is in place, and name the parties involved, but they are still not allowed to publish the subject matter itself.

The injunction still stands, it’s just that we now know an injunction is in place. A superinjunction is so damaging because it means we (the public) are deliberately kept in the dark as to the very existence of an injunction.

And bear in mind that an injunction is in theory an act of last resort anyway. A superinjunction adds another level to that, which can be very dangerous in terms of press freedom.

Busfield (replying to Gooner UK): my understanding, and I am not a lawyer but I have spent much of the day talking to one, is that both the super and the injunction have gone. It is up to the paper concerned to decide whether it can publish its story without breaking the laws of defamation and relating to privacy.

The background: two papers ignore the injunction

It’s also interesting that two newspapers decide to ignore, or sail very close to the wind with regards to, the superinjunction – ie they ran stories that appeared to be in breach of it.

Mail reports injunction’s existence

As the Press Gazette reported on Friday morning (ie before the superinjunction was lifted):

A new “super-injunction” has been used by a Premier League footballer to stop national newspapers reporting his alleged marital infidelity.

The Daily Mail identifies the man only as a married England international.

The Daily Mail today reports, in apparent defiance of the order: “So draconian is Mr Justice Tugendhat’s order that even its existence is supposed to be a secret.”

(It’s interesting that the Press Gazette felt able to run the story about the existence of the superinjnction stating “Press Gazette has not been served with the injunction.” – I would have thought that this was also sailing close to the wind. It knew there was a super injunction, and I’m surprised its lawyers didn’t make an attempt to find out the full details.)

The Mail’s piece had a couple of nods and winks to Terry’s role:

A married England international footballer was granted a sweeping injunction to prevent publication of his affair with the girlfriend of a team-mate … It could be anyone from the captain of the top team in the land …”

What, like the captain of England and Chelsea, you mean?

As does the Telegraph

On top of this, the Telegraph had run a piece, too, according to the Guardian:

Yesterday [Thursday] The Daily Telegraph technically breached the “super” part of the superinjunction by reporting that the courts were hiding the identity of a footballer and allegations about his private life. (This piece appeared in print but is no longer online).

Maybe since the Trafigura injunction, newspapers have been looking for a way to kill off superinjunctions. If they wanted a weak super injunction to pick on as a way to discredit them, this seemed a prime example.

Whatever their reasons, nothing seems likely to happen to the Mail and the Telegraph for breaching or nearly breaching this one – unlike in the Trafigura case, it seems unlikely John Terry is going to successfully sue anyone over this issue.

Conclusion

The Mail sums it up well:

In a scathing ruling, the judge made it clear he suspected Terry was more afraid of losing the commercial deals than anything else.

He said the footballer appeared to have brought his High Court action in a desperate move to protect his earnings – rather than the woman with whom he had been conducting his affair.

(And given this, it’s hard to see how the superinjunction was ever granted.)

There are legitimate reasons for injunctions and even superinjunctions.

But judges need to think very carefully before granting them. And the British courts and the right to privacy should not be used to protect the commercial interests of the “father of the year”.