The Ryan Giggs saga continues to fuel controversy in the UK about privacy, freedom of expression and technology. But this debate has yet to capture such scandals in Asia, writes Mayer Brown JSM partner Kenny Wong.
It all began when a UK newspaper published a story about an alleged sexual relationship between Imogen Thomas, a former Miss Wales and a married footballer. The footballer promptly commenced legal proceedings and applied for a temporary injunction preventing the newspaper and Ms Thomas from publishing or disclosing details of the alleged affair, as well as the identity of the footballer. Court documents referred to him as "CTB".
Justice Eady, whom many media lawyers consider to be the driving force behind the strengthening of the rule of privacy in the UK, had no difficulty in granting the injunction. The learned judge found, "it will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in other cases as tittle-tattle about the activities of footballers' wives and girlfriends".
Despite the injunction, CTB's identity was revealed by some users on Twitter, the popular social networking and microblogging website. CTB commenced action to compel Twitter to reveal information about those who disclosed his identity in the online discussions. This incited tens of thousands of Twitter and internet users to ignore the injunction and reveal his identity. Overseas media not bound by the UK injunction openly discussed CTB's identity and public image. CTB's identity was finally made official in the UK when a member of the Parliament identified Ryan Giggs as the married footballer during a debate on privacy laws in the House of Commons.
It is worth noting that the injunction in this case is not a "super-injunction" as described in some reports. A super-injunction restrains not only the disclosure of identities and information regarding the case, but also the existence of the order and the proceedings. The injunction granted to Ryan Giggs is an anonymity injunction, as it only limited disclosure of the facts of the case and prohibited the revelation of his identity.
The case has sparked intense debates in the UK regarding privacy laws and use of injunctions against the freedom of expression. Further, the case demonstrated that privacy can be easily undermined as online discussions become increasingly popular and enforcement is difficult, if not impossible, against possibly countless offenders in a forum without national boundaries. A committee was formed to review the situation and is set to report back in autumn this year.
There is as yet no case to show that Hong Kong will follow the UK in developing privacy law from the civil tort of breach of confidence. Meanwhile, anonymity orders have been made by Hong Kong courts to protect witnesses or victims in many criminal cases. In a recent criminal court case involving former Olympic rower Gloria Chan Hok-yan blackmailing a 73 year-old man with a sex videotape, the blackmailed man was allowed to testify behind a screen to hide his identity and was referred to as "X" in court and "rich tycoon X" by the press. Although the judge later remarked the man to be a "dirty old man" who brought the misery upon himself, the judge still maintained anonymity to him and his identity is so far successfully protected.