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.

“In a street with shabby houses and scruffy gardens there’s no social pressure to keep your garden trim. We can drive social change”

James Firth (@JamesFirth)

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.

Sebastien Lahtinen

3 Responses

  1. Malcolm on 25 May 2011

    I see a lot of people discussing privacy when it comes to footballers or actors caught cheaing on their loved ones and their family but i do not see any points being made regarding the fact that some celebrities and footballers make huge sums of sponsorship money based on the very fact they have “family values” and are devoted husbands.

    It is the public who buy the shirt or the soft drink or razors or clothes that the footballer or celebrity endorses, many buy it based on an image perceived as good, it is in my opinion in the public interest to out footabllers or celebrities who cheat behind their partner’s back, its in the public interest because of the very fact they make money on that goodie two shoes image, when they advertise a false image it is only right the public know about this and we can then avoid the clothes, razors, hair products or whatever they are advertising.

    Now this is a totally different kettle of fish to a person working in a factory or an office job somewhere, that type of person does not get sponsorship based on a perceived image, therefore when they cheat there is no public interest in knowing, far different to a rich sports star who has something to plug based on his family man image.

    In the case of the recently outed footballer i would say this, he claims he was being blackmailed but the court accepted this without any proof, that is wrong, even if he was being blackmailed, he was cheating behind his wife’s back and no doubt earning money from some sponsorship deal based on a family man image that was false, that cons the public who buys the product and that is wrong and we need to know we are being conned as far as the fake advertising of a family man image goes.

    • WebDude on 25 May 2011

      Not sure whether he does have any sponsorship based on a ‘family man’ image – footballers and other sportsmen can be in the spotlight based on their achievements, even if there is no ‘fortune’ (yet).

      To me, more important than any sponsorship they may (or may not) be getting is the fact they are idols and young people follow what they do (in much the same way as film stars and pop stars) and copy them…

      If they are great at their sport they can inspire others to participate and out of many there will be some future medal winners… Unfortunately, of course, if they “go off the rails” with drink or drugs, or cheating on partners, then some of those who see them as inspirational will consider they can “do no wrong” and ignore the bad effects of such activities.

      Drink/drugs are sometimes regretted in later life but at the time the individual is “just partying” and see what they do as nobody’s business whatever they are doing to themselves and how they might be copied.

      Only much later do some of the stars indicate their regrets over having split families, and how badly behaved they may have been when under the influence of drink or drugs.

      Nowadays, with the scandal rags ready to report what goes on in the bedroom it encourages a “kiss and tell” environment, and the newspapers will claim “it’s what our readers want” when the reader has no real control over what is put in the paper… merely the option not to buy!

  2. WebDude on 25 May 2011

    So, we’ve covered the pop / sport / film star end, while at the other end, there are senior staff within companies, the media, and so on, who seek their privacy because they will damage their reputation. That alone is good enough reason for the details to be public – if they are ashamed of their actions, then they deserve no all encompassing privacy (where someone breaking the injunction may be imprisoned for 2 years) – simply because they knowingly did something wrong and are too cowardly to stand up and face (justified) criticism when they are found out.

    I think the lesson to be learned, in this online environment, and particularly for teens and younger, is that what you put out in public (or think is private, but could easily become public by someone uploading a photo, or quoting a text message, or publishing an e-mail), is that if you do or say something wrong, it can come back to haunt you.

    While I would not expect everyone to become hermits and never discuss things (a bit of gossip could be considered good PR, if it isn’t salacious!) but to be more wary in future of bad-mouthing anyone, writing lies, or sticking their nose into the matters important to others, because if you go prodding about with a long stick, you might find you unleash something nasty (whether fire ants or a wasps nest!)

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