Why super-injunctions don't happen in US

By Tom Geoghegan
BBC News, Washington DC

Image caption,
Injunctions are rare in the US legal system

If European judges had ruled in favour of ex-Formula One boss Max Mosley, it could have increased the number of injunctions sought by famous people in the UK to stop details emerging about their private lives. A number of British celebrities have kept stories out of the papers using "super-injunctions", despite their names leaking on Twitter. But in the US, such action rarely happens. Why?

The super-injunction story that has made the news in the UK has barely registered in the land of celebrity culture, the US.

But where it has been picked up, there is some puzzlement about all the fuss.

The news and gossip website Gawker joked that the Twitter account at the centre of the story was "not very impressive" to Americans:

"Six tweets of entirely un-sourced rumours about celebrities we've never heard of. That's basically [rival website] TMZ on an off day."

While in the UK, the story has evolved into a debate about a "two-track" legal system - one for mainstream media and one for social media - in the US that debate rarely happens, because all media can get away with a lot more.

And injunctions? Forget it. Americans are bemused that famous people in the UK are able to stop the publication of details of their private lives, because it goes against one of their country's founding principles, free speech.

The US has a booming industry in entertainment, gossip and celebrity publications, mainly based in New York and Los Angeles.

As well as Gawker, there is famed supermarket tabloid The National Enquirer and the website TMZ, which told the world of the death of Michael Jackson. None of them need to worry much about injunctions.

The equivalent in the US would be something called prior restraint, but there are very few successful examples.

"The First Amendment of the US Constitution protects freedom of speech and courts are very, very reluctant to prohibit somebody from saying something," says Steven Wagner, a litigation lawyer at Wagner Davis in New York.

"So a prior restraint case against any form of speech is difficult to obtain in the US because of the constitutionally protected rights that grant freedom of speech."

It was the First Amendment to the US Constitution for a reason, says Mr Wagner.

"When the US was created, our founding fathers wanted to ensure that its citizens had the right of petition and freedom of speech without the threat of sanctions.

"It's one of the country's basic rights and very strongly protected in our laws, so there's a natural disinclination to any part of prior restraint."

It's hardly surprising, given the obstacles, that injunctions are so rare, and only in matters of national security are they likely to succeed.

In 1971, the Nixon administration successfully stopped the New York Times from publishing the Pentagon Papers, classified documents that included damaging revelations about US policy in the Vietnam War.

But two weeks later, by which time more newspapers were also running with the story, the US Supreme Court ruled the government did not have a strong enough case to merit prior restraint.

US lawyers in this field are agreed that there's little chance that an individual in the public eye could get an injunction to protect their privacy.

They could, however, sue for libel after publication. But lawyer Michael Graff, with 50 years of experience, says the libel laws favour the press.

Plaintiffs must prove, he says, not only that the statement was false but that there was also an element of malice - that the magazine did not try to establish whether the statement was true or not, prior to publication.

There is also another big deterrent - the question of expense. Libel cases are rarely brought because it's very expensive to litigate in the US, the awards are small and winners don't escape paying their legal fees, like in the UK.

So the odds are stacked against a successful libel case in the US, which means the difference there between what mainstream and social media can publish is far less defined than in the UK.

"It's not that pressing an issue," says Christopher Sprigman, who teaches constitutional law at the University of Virginia.

Individuals posting messages on Facebook and Twitter about public figures are subject to the same libel laws as newspapers, but statements about a next-door neighbour are viewed more seriously, because they are private figures, he says.

But Twitter is unlikely to ever find itself in the dock, under US law. "The defendant can be liable if he knows about the falsity of the statement or is recklessly indifferent to it.

"Twitter is a publisher. But unlike the New York Times, which has editorial control over what appears on its pages, Twitter is an intermediary which is not carefully edited to the same extent.

"So the idea that Twitter has knowledge of the statement or is recklessly indifferent to it is hard to imagine."

Mr Wagner says he has acted on behalf of clients - one of them a public figure - who have taken action against statements made on Facebook, but a retraction of the offending words is usually enough.

Given these differences between the US and UK, it's no surprise that some famous names have been coming to London to use what many believe is a more favourable legal system.

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