The story of Twitter and the super-injunctions isn’t about technology. It’s about power, fairness, and history.
It’s easy to mock judges for being out of touch with society, and it is true that they live in a cocooned world and don’t tend to mix with much of society. But when a judge tells us that “modern technology is totally out of control” it’s clear that there’s more going on than the bench needing to be advised that the Rolling Stones are, m’lud, a modern beat combo. The assault on Twitter and its users by the appropriately named Lord Judge – Britain’s lord chief justice – is about the contract that we make as citizens with the law.
So let’s back up a bit. This is about the super-injunction: the fabulous British injunction, or gagging order, that prevents people repeating an allegation, from naming those who are the subject of the allegation, and from stating that the injunction exists. They came to fame in 2009 when the trading company Trafigura used them as a device to prevent public inquiry into its dumping of toxic waste off the Ivory Coast. The Guardian eventually succeeded in having this lifted, as being contrary to the public interest.
A rolling cast known by their jobs
Since then, there has been a string of cases in which “celebrities” and others in the public eye have been granted super-injunctions, which apply in England and Wales, to protect their privacy. I can mention some of these because they have been lifted: Andrew Marr chose to relax an injunction which covered an affair that he had had; the banker Fred Goodwin’s – about an affair he had with a senior colleague as the Royal Bank of Scotland collapsed around them – was partly lifted after he was named in the both the Commons and the Lords under Parliamentary privilege on the basis that it was in the public interest.
The rest of the rolling cast of the super-injunction story is known only by a set of random initials and their jobs: the professional footballer, the actor, the broadcaster, and so on. Lord Judge is cross because many of them may, or may not, have been named on Twitter – based in California – sometimes by people who do not live in England or Wales and may, or may not, be beyond the reach of English civil law. And this became news this week because lawyers acting for the footballer prepared a lawsuit against “Twitter Inc. and persons unknown”. The judge’s view is clear:
Are you really going to say that someone who has a true claim for protection perfectly well made has to be at the mercy of modern technology?
The social contract
The trouble is that this makes the issue seem as if it is about technology, when it’s actually about the social contract which the law represents. It may be clear from a lawyer’s perspective what constitutes “a true claim for protection”, it’s less clear, from a social perspective, why or when they should be granted or who has the ability to make such a claim. Even when the law is not an ass, lawyers can be. The law is a set of agreements made, formally and informally, over time, between parliamentary representatives, judges, and the people.
The tension over the super-injunctions isn’t just about – as Lord Judge may imagine – a prurient interest in celebrity. They’re also about wealth and power. You need to be rich to finance a super-injunction. One of the drivers of them has been the increasing importance of privacy as a human right, but another is increasing economic inequality (the High Pay Commission pointed out the scale of this earlier this week). For some reason, the words of Anatole France come to mind: that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”
Blind to history
It’s also relevant that the ground rules between parliament, judges, the press and the people have been fought for over centuries. The judges’ response to the naming of Fred Goodwin by the MP John Hemming, and the possible naming of super-injuncters on Twitter, is blind to a lot of history. When another judge, the master of the rolls, Lord Neuberger, pops up to say that statements made in Parliament which breach injunctions might not be protected by parliamentary privilege, this blindness to history becomes intense.
Parliamentary privilege does two things. It gives parliamentarians immunity from prosecution for things said in the proceedings of parliament, and it allows journalists to report those things in a current – “contemporaneous” – news report. The right of immunity of Parliamentarians within Parliament was one of the principles for which Parliament fought in the English Revolution during the 17th century, and was enshrined in law in the Bill of Rights in 1689. The principle that the press is free to report Parliament goes hand in hand with this. As the then Lord Chancellor, Lord Goldsmith, said in 2006,
The purpose of Parliament having privilege is so that there can be free debate in Parliament. There is no point in free debate in Parliament if the free debate is then kept secret by the media.
Social media does represent a challenge to legal process. When I did jury service recently we were reminded at the start of trials that looking up details of a case online would be contempt of court. Courts now have processes to make sure that the jury decides the case privately, without external influence; our mobile devices were removed from us by the ushers as we left to deliberate, and returned after we had given a verdict. And this is as it should be. But when judges start comparing the police response to tweeting about super-injunctions – essentially a public and political argument about the limits of freedom of speech – with the way they respond to child pornography, as Lord Judge did this this week, you can sense a looming crisis of representation and legitimacy.
A particular form of preferment
One of the issues about the super-injunctions and Twitter is about a particular form of preferment: the complainants are able to afford the best legal process that money can buy, while the judges insist that this process must be honoured by the rest of us. Of course, one of the basic building blocks of the lawful state is that no citizen is above the law. But the law can maintain its integrity only if all of us can turn to it for our protection. If privacy matters, the legal protection that ensures it should not be the preserve of the rich. Imogen Thomas is now universally known to have had the affair with the professional footballer, and her reputation smeared from the bench, even while his name is protected by the courts. The tweets about the super-injunctions, I think, are at least partly a way of the citizens reminding the judges of the context in which the law must operate if it is to maintain respect and credibility.
When I first saw an apparent list of super-injunctions on Twitter, I wasn’t sure if they were accurate or not – and still have no idea. At least one seemed to be wrong, since Jemima Khan instantly denied having had an affair with Jeremy Clarkson (and who can blame her?). As to the rest, I have no information, and it would be hard to demonstrate that most of the Tweeters – even those in England and Wales – were knowingly in breach of an injunction. Or what you make of those who noted that #ryangiggs was trending on Twitter at the end of last week. Twitter, of course, unusually for a social media organisation, also has some spine, as it demonstrated by its response to the Wikileaks investigations.
As it happens, Lord Neuberger’s report on super-injunctions and anonymised injunctions, published at the end of last week, emphasised the importance of “open justice”, and said they should be granted only in limited circumstances and for short periods of time. In other words, although his Lordship didn’t put it exactly like this, that their widespread use and lazy granting last year had made the law look a bit of an ass. Maybe it wasn’t “modern technology” that was “totally out of control”.
The photograph of the Royal Courts of Justice is by Nick Weall, and published at the e-architecta site. It is used with thanks.
the next wave 
This thoughtful piece does not entirely convince me of its stated premise: “The story of Twitter and the super-injunctions isn’t about technology. It’s about power, fairness, and history.”
It seems to me that the super-injunctions issue is part of a larger range of issues that are very much about technology and its effects on every aspect of life, including power and fairness.
One major effect is on jurisdiction – the sphere of authority of a legal system and the limits within which its power may be exercised, or within which a government or a court has authority.
In the instance of super-injunctions, once foreign-based technology is involved, this quirky piece of British legal practice is confronted with the legal systems of other countries. Any attempt by British courts to extend their rulings abroad will run up against the principles and practices of foreign jurisdictions such as the First Amendment in the United States.
This is a relatively trivial instance of jurisdiction vs. technology. More serious examples abound wherever governments (e.g. China, countries involved in the “Arab Spring”) invoke or indeed enact legislation that intends to limit their citizens’ access to information and their ability to exchange information. Assertions that popular uprisings have been driven by social media – “Twitter revolutions” – are all too often hyped up, but they are not without foundation. Whether or not technology has played a decisive role, it has most certainly played a significant role because, in many cases, the technology has been located outside the jurisdiction of the country concerned. This has limited the ability of the rulers to control information. It has enabled citizens to access channels of information and communication not controlled or approved by their rulers.
This leads on to the effect that technology has on the spread of ideas and its effect on norms, which in turn affect how citizens perceive the legitimacy of the laws and norms governing them. This is fundamental to the notion of “social contract” that Andrew highlights in his piece.
A recent example is the arrest of IMF managing director Dominique Strauss-Kahn in New York on May 14th. In reporting the events, the French media were caught between their customary discretion in reporting the private lives of politicians, and the intense interest of some French citizens visible on social media. In the days following the arrest, the #DSK hashtag on Twitter created a stream of several tweets per second, most of them in French and many linking to reports in foreign media. In particular many French tweeters commented on the photos of DSK in handcuffs doing “the perp walk” – an indignity totally foreign to powerful people in France.
Whether or not all this has prompted real soul-searching and “A Change in French Sexual Views” (as claimed by the New York Times) remains to be seen. What is beyond doubt is that technology is giving citizens the tools to exchange opinions on a large scale, in a compressed time frame, and to channel them into the online equivalent of a crowd (using hashtags, for example). The online crowd, like a mob, is not immune to disinformation and stampeding, but it does have rapid access to higher quality information than mobs had in pre-technological times. When enough people use online tools to spread forbidden information (e.g. super-injunctions) or to spread information and opinions normally kept outside public discourse by those who control it (e.g. the sexism of French institutions), then technology is proving to be a significant factor in de facto challenges to the legitimacy of laws and norms.
This leads to another important issue, which is that technology raises thorny moral questions in every sphere it touches. Challenging the legitimacy of laws and norms seems to be on the side of the common good in some cases such as super-injunctions and institutional sexism. However, there are plenty of instances where technology enables deliberate or de facto challenges to legitimacy where the common good is arguably not fostered.
Access to extreme pornography, paedophilia groups. and racist or terrorist “how-to” manuals are obvious cases. Less extreme but thornier cases are access to suicide groups and to sites that enable users to break Intellectual Property laws by hacking software and swapping files.
And so to power, fairness and history. Whether it’s Twitter and super-injunctions, social media and popular uprisings, or simply people getting hold of stuff they want, technology most certainly shifts the balance of power away from those who hold it by virtue of money or institution, and towards the citizens. In this sense, technology is a factor promoting greater “fairness”. However, it’s a morally-neutral fairness. It means that ordinary citizens have greater power than they ever did to pursue their own ends. As with the rich and powerful, the ends of ordinary citizens may be moral or immoral, good or bad, fair or unfair.
An interesting article, and a typically thoughtful response from Stuart (thanks for the link to the article). My thoughts are that without the enabling factor of technology, the super-injunctions – like any other repression of knowledge using legislation – would have held. When the only way the news gets out is via a very limited channel, it’s easy to nobble that channel. When every (digital) citizen has the ability to disseminate it, it becomes pretty much impossible to whack all the moles.
The point made by Lord Judge about the social media riding roughshod over protections properly granted, is entirely valid. As is the article’s point about the ‘social contract’ between the people and the judiciary. The challenge now becomes, how to provide those protections – to all, not just the mega-rich – now that the public backlash against the “widespread use and lazy granting” of gagging orders has shown that they can no longer be relied upon.
I guess one option would be for people to be less interested in who’s shagging whom, and have a little more compassion for the partners of the supposed miscreants, who find their painful betrayal something to be bandied about the gutter press (in this context, that’s any media that chooses to report it), rather than something for their families to deal with in private. Probably too much too ask.