With all the noise about superinjunctions, you might think that the recent spate of absurd, censorious "privacy" lawsuits spontaneously arose from the minds of football players, toxic dumpers, and evil viziers of the banking industry. But as Peter Preston writes in the Observer, the architects of these suits are the same lawyers who got rich embarassing England around the world with absurd, censorious libel lawsuits in the last decade, who are now chasing a new business-model as the old one fades away.
For the other defining change of the last 12 years has gradually seen the essential big earner for England's small but richly endowed libel bar sliding away. English libel law, offering heavy damages, huge fees and real advantages to a prospective litigant, has slowly become another victim of the digital revolution. Our courts have traditionally welcomed cases from all over the globe, however vestigial publication to a UK audience may have been. In that sense, the internet seemed to offer still plumper pickings. But American administrations, first at a state then a national level, became disgusted by the justice they saw meted out to their citizens by the Strand. They have decided that no English ruling that infringes the right to free speech can be enforced across the Atlantic. Our own politicians, spurred into action, are seeking to reform the gross imbalances of English libel.
And this decline in libel rewards is fundamentally connected to the rise in privacy speculation since 1998. Max Mosley could have chosen libel, but opted for privacy. Lawyers, naturally, have moved into this fresh, potentially lush area of litigation. Sweeping injunctions – nobody has quite counted them yet – have become the weapon of first resort. Sometimes (as with Trafigura's attempt to gag the Guardian) the case has been too outrageous to endure. More typically, though, the queue of celebrities at the court door has succeeded in buying expensive secrecy for marital misdeeds – even if some, such as Andrew Marr, eventually repented of going to court.
John Naughton produced the handy spreadsheet above, which presents a rough estimate of the cost of trying to sue Twitter over pointless superinjuctions: about two days' wages. As Naughton notes: "In the case of footballers earning anything up to £200k a week, the fees probably look like small beer, so there's clearly room for business expansion here — for lawyers."
