Super-injunctions, contra mundum orders and social media

It is a weird feeling when someone you know becomes the talk of the moment. This happened to me last week (no sorry, I don’t know Prince William or Kate Middleton).

Mr Justice Eady issued a Contra Mundum super-injunction to prevent publication of ‘intimate photographs’ of a married public figure, who we are to call OPQ, after a woman tried to sell them for a ‘large sum of money’.

A Contra Mundum super-injunction is enforceable worldwide and in perpetuity.

‘Amoral judges, shameless celebrities and a Britain that’s coming close to a police state’ railed The Mail.

‘Blame the gagging judges, not the Human Rights Act’ pronounced The Telegraph.

‘At the rate the judge is going, I’m surprised he didn’t make the order to cover the whole solar system’ said helpful Liberal Democrat MP John Hemming.

Now I know Sir David Eady.

At one time, I alleged that lies had been told about me to cover up a financial fraud I had discovered as Managing Director of CM:Lintas, a subsidiary of Interpublic.

David Eady QC was my barrister in this action. I believe mine was his last case as a QC before becoming a High Court judge. (In defamation, words like ’I believe’, ‘I think’, ‘in my view’ are very important).

So here are three facts:

1. On 3 April 1997, Lintas Worldwide issued a Public Statement:

‘Hugh Salmon was employed by CM Lintas International Limited (“CMLI”) as Managing Director from June to October 1992. During his brief spell with that company he brought successful management disciplines into the company and showed a thorough knowledge of the advertising industry. He worked hard and constructively to advance CMLI’s interests.

In the event, Mr Salmon was dismissed from the Company by Chris Munds, the Chairman of CMLI. That dismissal was wrongful and he was compensated for that wrongful dismissal.

Since then, Mr Salmon has taken further proceedings against Chris Munds, CMLI and Lintas Worldwide (“Lintas”) and those proceedings have very recently been settled in circumstances where substantial compensation has been paid to Mr Salmon.

Lintas accept that Mr Salmon was respected by clients and staff and that his career has been severely affected by untrue suggestions to the contrary for which Lintas apologise to Mr Salmon. Lintas further accept that Mr Salmon was justified in bringing these proceedings and they wish him well in the future.’

2. On 11 April 1997, the front page of Campaign magazine said:

‘Interpublic Group is facing one of the biggest legal bills in British advertising history after a sensational climbdown…’

3. A leader article in the same issue of Campaign said:

‘Lintas has offered no explanation of such activity; whether or not it was authorised, whether action is to be taken against any individuals or whether any client suffered’.

So there was a time when my life, in a way, depended on David Eady.

And I can say, from a depth of personal experience that I doubt (sic) any of these journalists or MPs have had of him, that David Eady is not only one of the most formidably intelligent men I have met, but also a deeply compassionate, caring man who is determined for right to win over wrong.

He also has a deep respect for the law. Time after time, in meeting after meeting, he overrode advertising people like me and Rupert Howell, who had agreed to be my ‘expert witness’, and directed our emotional opinions to the rational letter of the law.

And, I have to tell you, David Eady knows what he is talking about.

I have no doubt whatsoever that, in the case of OPQ, Mr Justice Eady was applying his extraordinary brain to interpreting and applying the law. If Article 8 of the Human Rights Convention (which upholds the right to privacy and to which our politicians have signed up) is written in such a way as Mr Justice Eady is required to make a ruling, then he will do so based on his interpretation of that law and not on his own personal prejudices. I do not care what any journalists or MPs say. Believe me.

Why are my own experience in defamation and this ‘Contra Mundum’ order relevant to the marketing and media world?

Well, the first is to establish that I might know a bit about the law of defamation and the second lies in the explanation of the phrase ‘Contra Mundum’ above:

‘A Contra Mundum order is enforceable worldwide and in perpetuity’.

But is it?

By which I mean, is it enforceable?

I believe, for all his knowledge of the law, that marketing experts might know what they are talking about here more than Mr Justice Eady – although I do not know this for sure because Twitter was not around when I knew him. Please note the careful use of language in this paragraph.

As an industry, we know about the extraordinary impact of Twitter, Facebook and the internet generally.

We also know about the huge financial valuations that are currently being placed on these and other ‘new media’ companies. We are experiencing another dotcom boom.

These valuations are based on the value of these potential audiences in terms of marketing and advertising cash.

One issue of concern is the anonymity, inanity – and, now, legality – of many of the comments made on the internet. They are certainly a consideration to advertisers backing the sites that ‘distribute’ or ‘broadcast’ them (deliberate ‘old media’ terms).

So when a Contra Mundum order is issued in London, it raises a debate and a set of questions that our industry has a vested interest in answering:

– to what extent, in the real world, is this Contra Mundum enforceable?

– why is it easier to defame someone online rather than offline?

– what about all these ‘comments’ that are made behind a veil of anonymity?

– are these anonymous commentators above the law?

– if so, why?

– if not, to what extent are they controllable?

– what are we doing to police them?

– what are the owners of websites and blogging forums doing to monitor them?

– is there a code of practice?

– should advertisers support websites that do not abide by a code of practice?

–  who is making the rules?

For what it is worth I believe, as an industry, we should be doing far more than we are to take a lead on these issues.

In particular, with their worldwide knowledge of consumers and new media trends, multi-national companies and agency groups can make a massive contribution. After
all, it is their budgets upon which these worldwide websites will depend for revenue.

If nothing else, we need an agreed Code of Practice (the ‘Contra Mundum Code’?) where online companies should build in checks whereby the people who make comments on their sites are identifiable in person – and answerable to the law.

If websites don’t know who their customers are, then I don’t think advertisers should pay to reach them.

I believe advertisers, and agencies that act for them, should be lobbying politicians to develop ways of enforcing people to behave online in just the same way as they do offline – by law.

And politicians would be far better off making better laws for today’s world than taking cheap personal shots at the judges who have to interpret them.