Everyone’s talking about superinjunctions…

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.. and so I thought I’d make a rare attempt at topicality and join in. Today, Ryan Giggs, the Twitterati’s posterboy for court ordered privacy, was named in the House of Commons (by veteran fan of fidelity and monogamy John Hemmings MP), and so the worst kept secret since Adrian Mole’s diary is officially out. Ryan Giggs (out of Manchester United and some early noughties trainer adverts) took out an injunction to prevent the press reporting allegations that he had an affair with Imogen Thomas (out of Big Brother and going-out-with-famous-people). The world can now discuss this at length, unrestrained by overly draconian and archaic laws which might interfere with our hard earned personal freedom to talk of many things. Hurrah!

Or maybe not. Let’s unpick this a bit. Firstly the legal principles aren’t archaic at all. Essentially they’re rooted in the Human Rights Act which was enacted in the UK in 1998 and provides “the right to respect for privacy and family life.” So lets deal with any politicians who might be trying to spin a “The judges are out of order. They shouldn’t be making laws..” sort of line. They didn’t. You did. If you failed to think through the implications, then that’s Parliament’s problem to resolve. The role of the judiciary is to interpret and implement the law. Parliamentarians don’t like they way the law is implemented? Fine. Change it.

But don’t pretend that designing a revised law is going to be straightforward. Both the principles and practicalities involved are tricky animals. Privacy, first of all, is a squirmy little beast. Is it an invasion of privacy for papers to print photos of celebs in unflattering beachwear if they’re dressed that way on a public beach? What if the photos are of somone in their own garden and a bit of light treeclimbing is required to get the shot? Are comments made directly to a personal friend, in a public place, private or public? What about comments directed @ a particular user on Twitter? What about comments on facebook which should only be visible to invited friends? What if one of those friends chooses to repeat a comment?

The right to privacy is already balanced in law against the media’s freedom to tell stories that are in “the public interest”, but what information is ultimately in the public interest? The exposure of an affair where the philanderer is a politician trading on his family man image? Probably. The exposure of an affair where the philanderer is a journalist not averse to pressing others about their private lives? Possibly. The exposure of an affair where the philanderer is quite good at kicking a ball whilst running? Sounds like a bit of a stretch to me.

And that’s before we’ve even got to the practicalities of implementing legal parameters around privacy and free speech. The issue of money is a big one in any legal scenario. Taking complex civil court action is expensive. Legal Aid (while it still exists at all  – don’t even get me started on that one) seldoms covers civil litigations, so how do you ensure that the same rights are afforded to the poor and middle income as to the super-rich. One big criticism levelled, perhaps fairly, at many super-injuncters is that their wealth allows them to quash stories that would otherwise have been told freely. At the moment we risk having one level of protection of privacy for the rich, and another for everyone else.

What about the modern interweb? Is chatting to someone on Twitter about a juicy bit of gossip different to chatting to someone in the pub? Can news blackouts in the UK really be sustained over time, if websites based overseas take the view that prosecutions are unlikely to be successful? In that world we end up with two-tier access to news, where internet users have access to a layer of information barred by law to those limited, by finance or circumstance, to mainstream UK media.

Twitter has already demonstrated itself unable (or unwilling) to keep its mouths shut by its response to the Giggs-Thomas affair. Giggs’ name was already available online if you cared to look, but the explosion of online exposure came after his legal team attempted legal action to force Twitter owners to release the details of users who had already named Giggs. At this point Twitter users behaved the way they do when Twitter, as a community, feels its back is against the wall. They ganged up and stuck a collective two fingers up at the legal pressure, by retweeting Giggs’ name with abandon. With even a passing knowledge of Twitter’s short but chatty history, the legal team should have been able to predict this response. Head over to Twitter and search for #Iamspartacus or #twitterjoketrial if you don’t believe me.

So what’s the solution? How do you balance the right to freedom of speech and the importance of a free media against an individual’s right to privacy and family life? Honestly, I’m not sure. My gut feeling is that I don’t have a right to know who Ryan Giggs is sleeping with. I’m not sure that anyone, other than his wife, does. But I think information is in the public interest when major companies are involved in court action alleging they have illegally dumped chemicals on the African coast. Not heard about that one? Surprisingly, it’s not made the same number of column inches as Mr Giggs’ infidelities. You can read more about it here though: http://www.guardian.co.uk/media/greenslade/2010/jan/29/superinjunction-john-terry-trafigura

And I think I’ll draw to a close with a quote from that very Guardian article, which compares the injunction taken out by another premiership footballer (John Terry) with that taken out to prevent the chemical dumping story making the news: “We, and I hope you, believe that superinjunctions are a threat to freedom of speech and serious reporting. But please use the space below to discuss that and not John Terry’s private life. The latter increases the risk of the former.”

And that’s my final point. Hurrah to Twitter for standing shoulder to shoulder with Paul Chambers over the, now infamous, Twitter Joke Trial. Hurrah to social networks for their part in keeping stories like the Trafigura chemical dump in the news. But by tweeting names of individuals involved in affairs or other private indiscretions, I think that we lessen our collective worth. It’s good to be troublesome from time to time, but troublesome with a point, not just troublesome cos it’s fun.

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