Can Twitter users breaking injunctions be prosecuted?

Twitter users who have taken part in the naming of celebrities said to have taken out injunctions to suppress details about their private lives may be in the clear after a lawyer suggested it was only the original leaker they were after.

The issue came to a head after a Twitter user posted on Sunday a list of celebrities he or she believes have taken out injunctions. Jemima Khan, one of the people mentioned, was forced to deny that she had taken out an injunction to prevent the publication of intimate photographs of her and the Top Gear presenter Jeremy Clarkson.

Charlotte Harris, a partner at Mishcon de Reya, told the Daily Telegraph: "There's no way I'm going to sue a Twitter user rather than a newspaper, I don't want to do anything heavy handed. The media organisation that allowed that leak is going to be exposed."

Speaking to the Guardian, she said that "if members of the public discuss [injunctions], [Twitter] ought to be a safe place for them to have a conversation".

Another lawyer whose firm has obtained gagging orders for its clients seems equally pragmatic about the situation. Dan Tench, a partner at Olswang, said: "We are not looking to do anything. The sensible thing would be to ignore it. Loads of things turn up on Twitter.

"If one spent all day trying to work out what is accurate there wouldn't be much left of the day. It's not unenforceable. We have led the way in bringing actions against anonymous internet sites. You can take people down. But in a breach of privacy case, it's not entirely consistent with keeping your identity private."

However, the key here is the status of the Twitter users who are discussing the injunctions. Harris says they are safe as long as they don't have links to a newspaper.

But if a celebrity was determined to gain satisfaction for a breach of an injunction, could he or she take on Twitter?

The short answer is no. Twitter is US-based and cannot be served with an injunction from a UK court. Going after an individual Twitter user who has broken an injunction seems the only realistic possibility.

The Twitter user could claim he had not been served with the injunction, but in the current situation an appeal to ignorance may not stand up in court. That's because the person who claims to have outed the celebrities on Sunday makes it clear in their tweets that they are aware the information is subject to injunctions.

However, there is also the problem that Twitter users are frequently anonymous - especially those breaking injunctions. Finding out their personal details is problematic - again because of the problem with serving Twitter with an injunction.

The only realistic recourse for a celebrity trying to build a case would be to appeal to Twitter's own terms of service, which state: "We may disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request."

Media lawyer Mark Stephens thinks that if Twitter did hand over details of the user who broke the injunctions, they could expect to spend time in prison: "The miscreant should expect a knock at the door and they should take their toothbrush to court," he said.

Whatever happens now, it is clear the law needs to be examined. The House of Commons Justice Committee is reportedly set to launch an inquiry into the use of super-injunctions. Conservative MP Claire Perry, a member of the committee, said: "This is making a mockery of the existing law and we need to make sure that the law catches up with the technology." ·