If the combination of the effective defeat of the Ryan Giggs injunction and recent comments by David Cameron on the issue of privacy injunctions are taken at face value, then the privacy jurisdiction of the High Court appears to be at an end.

If the Prime Minister of the country has effectively declared his own courts impotent to protect this right, then the vigorous, one-sided and partisan campaign conducted by the media, which in turn has led to a small (but significant) army of arm chair cyber warriors on Twitter challenging the law on this issue, then a key human right enshrined not only in the European Convention, but in a British Statute has effectively been lost.

This is because it is a right which (like most others) has no value unless there is a sanction for breaching it – especially when it is breached by powerful media corporations for profit. The popular media has a very obvious commercial incentive to infringe privacy and therefore a sanction is essential if it is going to be a right of any worth. If however the only sanction which effectively does that (i.e. an injunction) is robbed from the courts, then that right is lost.

If that is where we are headed, I would be fascinated to be a fly on the wall when, as is inevitable, David Cameron instructs lawyers concerning pictures of (say) his children at school, engaged in family activities at home; or if some paparazzi obtains nude/topless pictures of his wife, or indeed Mr Cameron himself. What then? Will he go to the court to enforce his human rights – and if he does will his own ill-judged words effectively have robbed him of the primary sanction of an injunction?

Mr Cameron’s response to this appears to be that the issue of privacy can be placed in the safe hands of the Press Complaints Commission; an organisation set up by the press, funded by the press, appointed by the press, with a Code written exclusively by the press, where 7 of the 17 commissioners are Editors. For anyone who has (as I have) dealt with the PCC since its inception 20 years ago, the suggestion that it is either a truly independent or effective body, or any substitute for a potent and unbiased judicial remedy is absurd.

The case of the footballer

In the case of the footballer’s alleged affair with Imogen Thomas, a court has three times found that the footballer’s statutory rights are engaged, and details of the affair should not be published. On the second occasion Ms Thomas was being represented and funded by the press. Has the press respected that decision? Obviously not. The principle reason why the PCC has any authority in these circumstances at all is because it can point to the alternative of a court sanction as being less desirable for the newspapers. If that sanction has disappeared, then any restraint that the PCC ever exercised in these circumstances will disappear entirely.

The suggestion by Lady Buscombe that the PCC would have stopped the Giggs story emerging is absurd, not least because it constitutes an admission that the press activity on the very day that she made those remarks amounted to a concerted and flagrant breach of the Code. Giggs’ privacy rights are enshrined in in the PCC Code. In setting out to breach the legal rights the paper was – as it well knew – breaching a Code written by editors. No doubt it was also reminded of this repeatedly by Giggs’ lawyers. The paper had clearly elected to breach the Code showing no respect either for it or the PCC. It has now breached the Code – as have the rest of the press. It is the reputation of the PCC rather than Ryan Giggs’ lawyers that is in tatters

As a society, we have to decide whether we are going to respect the rule of law or not. This applies to MP’s as much as the rest of us. Is the constitution going to survive judges looking at an element of a statute and saying that because they disagree with it they will not enforce it? That is effectively what has been done by some MP’s on super injunction issues, where from a position of ignorance they decide to undermine a decision made by a judge who is applying the law as debated and passed by parliament. This was most recently evidenced by Liberal Democrat MP John Hemming naming footballer Ryan Giggs as the subject of the privacy injunction, claiming that since Twitter users have named him, the court has no right to impose the order any longer, since it would have to sentence all Twitter users for breaching the order.

The Twitterati must decide

The Twitterati must also decide whether they are better served respecting the law or not doing so. It is hardly an act of great courage to join anonymously in cyber space a herd of others in infringing the human rights of a family, contributing to the distress of the Giggs children and humiliation of his wife.

For those marginally more courageous vigilantes who used their own names there remains the fact that they have knowingly breached an injunction for which some sanction should follow if the law is to be respected. Twitter itself last night said that it will hand over user data where asked to do so. Those celebrity tweeters, including Piers Morgan and Dom Jolly, now face possible legal action.

However the political will seems to be lacking and, since an MP has himself breached the injunction without the sanction that his fellow parliamentarians should have imposed, it is difficult to see why others such as Boy George, Dom Joly, Giles Coren and Piers Morgan – all alleged to be injunction-breaching Twitterati – should suffer.

Taking it to the street; is the cry of a mugger who steals your wallet/purse going to be; I don’t accept that element of the law either, and rather than stealing your privacy, I’m going to steal your money? Those that seek to undermine the rule of law must be careful what they wish for.

Did the press contribute to the Twitter activity?

There have been suggestions that the press has itself contributed to the Twitter activity that was the justification for the defeat of the injunction. Whether that is true or not it was the press that whipped up the Twitter squall that lead to Mr Hemming’s outburst, and it would be interesting to know from what source came the Twitter figure that he cited on the floor of the Commons to justify breaching a court order.

So the Twitter site too must make a decision about the application of the law to its world. If it wants the benefit of the law’s protection – as presumably it does – it should also respect the law. If it is prepared to play host to multiple human rights breaches then the right to privacy which parliament gave us in the Human Rights Act may ultimately be lost.

However hard the print press try to spin it, this is a David and Goliath battle where, with the assistance of some Twitterati and a misguided MP, Goliath has spectacularly triumphed, robbing David in the form of the Giggs’ family of its human rights as supposedly guaranteed by the European Convention and the Human Rights Act. In the end it shows a failure of judgment both on the part of some of the Twitterati as to which side to support; and on the part of the Government, which has sided with big business against the rights of the individual because of its own fears over the power wielded by the press.

Jonathan Coad, Partner, Media, Brands & Technology, Lewis Silkin LLP For further information contact me at: jonathan.coad@lewissilkin.com