The debate taking place across the Internet and mainstream media this week on super-injunctions is a perfect demonstration of the effect of a globalised communications infrastructure, and how it challenges our very concepts of privacy and freedom of expression. I have always believed passionately in both of these rights which are now somewhat in conflict.
Super-injunctions as they have been called (or probably more correctly referred to as injunctions which grant anonymity) are of great concern because of their potential use to stifle debate on issues of public interest. It is this term ‘public interest’ that is key and should be part of the decision making process. It is however important to note that (as someone else recently put it), what ‘interests the public’ is not necessarily in the ‘public interest’. We may (or may not) be interested in the intimate personal details of celebrities’ private lives, but there is often no public interest–no objective justification other than shear curiosity for us to know those details.
Today, with the benefit of Parliamentary Privilege an MP named the footballer who obtained an injunction on the reporting of an alleged affair in an attempt to defeat the injunction. He stated that with 75,000 people on Twitter having flouted the injunction, many based outside the effective jurisdiction of English courts, action against those parties was unlikely. Whilst his question (demonstrating the futility of super-injunctions once something is out on the Internet) is a very valid one, naming the individual served no useful purpose other than to start the frenzy of the English media naming him. No doubt we now expect newspapers to seek to have the injunction set aside or varied to help them sell more newspapers.
I very much hope that this doesn’t result in a watering down of parliamentary privilege which is a fundamental pillar of democracy. It is the one outlet left for democratic challenge and scrutiny of matters which we may otherwise not know about, unless they also leak onto the Internet. It could be argued that with today’s connected networks, the need for such protection of free speech is not as important, but it is nevertheless a valuable part of our democracy.
Parliamentary privilege has been used in the past in situations (not involving privacy arguments I should note) where the public interest argument is clearer such as in the case of Trafigura–Whilst I do not claim to be aware of all the facts, and thus cannot say with certainty that the publication of the document in the Trafigura case was in the ‘public interest’, there was certainly a reasonable argument that this could be the case. A footballer having an affair may well sell papers, but there is very little justification for breaching their privacy in this way. The grey area of a politician or religious leader preaching one set of beliefs whilst practising another would be more of a grey area.
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Whilst a balance of these interests could be found and enshrined in law, the transnational nature of the Internet means that any such laws would have limited effect as there would always be some jurisdiction where the forbidden information would be available, and before anyone suggests a filter-at-source solution, they just don’t work on any scale. The solution proposed by James Firth is to make it socially unacceptable to breach other people’s privacy; whilst I think the idea might work in the long term, I am not persuaded the public at large currently value privacy, until their own privacy is threatened. One by one, many friends who have claimed they ‘have nothing to hide’ have found themselves in one situation or another where they would prefer some information about them was not widely disseminated.
We also have to accept that something being discussed on Twitter, on a forum or in chat room is not the same as being published on the front page of a national newspaper. These tools are modern equivalents to having a discussion over coffee or lunch, whereas libel laws tend to regard them as equivalents to mainstream media.
It does amaze me how celebrities and public figures persist in trying to protect information when it is already out on the Internet, because it’s this drive towards secrecy that drives human curiosity to find out more. In the case of the footballer, I wouldn’t have even been aware of the allegations had they been reported in the tabloid press, but the push to keep the information from the public makes everyone even more interested–Anyone considering obtaining an injunction should consider reading up on the Streisand Effect.
In many ways, none of this seems new to us as we have always had to make decisions on the thinkbroadband forums about what is and isn’t acceptable in our little microcosm of the Internet community. We have a policy to remove personal or direct/mobile contact details, but generally we take a default position of not removing (usually negative) comments about ISPs. It can sometimes be difficult to tell someone you respect that you won’t remove a comment that is critical of them, even though you disagree with the posts themselves, but running online communities brings such responsibilities. It is ironic that within such spaces, the effect of removing libellous content can often cause more damage than leaving the content alone as people often assume there is something worse they are not being allowed to read about. We are increasingly being asked to accept a world where criticism is more likely to be archived and seen by more people, whether we like it or not. What is uncertain, is whether this also mean we have lost the ability to maintain our privacy.
At a recent Nominet .uk policy forum, there was a useful discussion on the conflicts of these rights, touching on other topics such as the ‘right to be forgotten’. With the generations of children who have never lived in a world without the Internet starting to grow up, there are some major policy questions which need addressing, spanning a wide range of online services, and the only effective way to do so is by the Internet community as a whole engaging in that debate. It is about time that we revisit the concepts of human rights, and ensure that are enforceable, effective and fair in the digital age.
What has arisen in recent discussions on liability for online content is that the court system generally is not geared up for dealing with the digital world which has revolutionised how we make decisions, consume media, and buy goods and services. We need a way to resolve online disputes (where they impinge on our rights) which is more accessible, effective, timely and less expensive than the traditional court system, but which can also maintain independence and due process. I am not arguing for a body to settle online squabbles, but a more responsive system able to deal with the fast moving digital world, aware of the consequences of decisions on third parties.