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Saturday

Our Lips Are(n't) Sealed... pt 127

Tedious as this is becoming at one level - the identity of a millionaire footballer playing away from home ZZzzzzz - it is becoming something of a lightening rod for the whole issue of the control of information and the rights of the individuals involved.

It's also setting the battle lines for a fight between the judiciary and Parliament as legal experts - such as Vera Baird QC (Solicitor General 2007 - 2010) - queue up to 'deplore the use of Parliament to wreck the properly decided judgment of the court'.

While MPs such as John Hemming point to Article 9 of the Bill of Rights which he says make it clear that the dealings of Parliament cannot be questioned.  In effect, Parliament remains sovereign, which was certainly what I was brought up to understand.   Of course it's not hard to find someone who will take the opposite view, especially where British and European law collide.  But it is a serious point - who has primacy, the those who make law or those who interpret the law?


Constitutional law, forgive me if I gloss over that one on a Saturday morning!

In a sense, there is a bigger question to consider, as whether it's British or European law we're talking about, the result is the same. Attempting to make global gagging orders - which is in effect what superinjunctions are - will always come unstuck if someone is determined to find an outlet for that information and once it's out there... well you may as well try rounding up cats.

Unfortunately, that person also becomes the arbiter of whether it really is information that is in the public interest, or tedious celeb gossip to shift tabloid newspapers.  Which is where the system is broken and does need fixing.

Meanwhile our Mr Footballer is reluctantly shoved back into the spotlight.

So what does Mr Footballer do?  Why talk to his laywers of course.  It's time to find out the identity of the Twitter superinjunction breakers.  But, the surest way to do that, is to initiate what's known as 'John Doe' proceedings in a California court (as that's where Twitter is based and is therefore bound by Californian law).  One slight problem Mr Footballer, to take out this kind of action you would have to be named in the court papers.  So that kind of defeats the object of that!

Instead our Mr Footballer has been to the English courts (well OK, his lawyers have) and made an application for Twitter to reveal the identity of specified account holders.  Which is curious.  From my limited understanding of the law, that ruling holds good in er, England and Wales.  I'm not even sure how much weight it would hold in Scotland, let alone California.

Oh and Twitter does happen to have have a contractual privacy agreement with it’s users.  Common sense would suggest it is unlikely to overturn this without a valid court order – in other words one lodged with a US court.

Meanwhile it seems everyone and his dog thinks they know the identity of Mr Footballer, making this ‘an exercise in futility’, as media lawyer, Mark Stephens, put it on BBC 5Live this morning. 

Stephens used the quote very deliberately as it was exactly the phrase used when the Lords decided to admit defeat and overturn the ban on Peter Wright’s Spycatcher book.  [At the time it was banned in the UK under the Official Secrets Act, but once published in Australia and the USA, imported copies flooded into the UK.]

The other name that's attaching itself to this case - and I think I'm safe to name him - is King Canute.  The tide is turning Mr Footballer.  


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