Month: May 2011

People Power 3 – someone who actually knows what they are talking about

OK, this is the last from me on this, but I just found this blog post from an actual lawyer who might just know what he is talking about and it seems to support the assumptions I have been making in previous posts

“In general, an injunction made against a defendant does not affect a third party. That proposition is, however, subject to the well-known Spycatcher principle, which is that an interlocutory injunction preventing a person from disclosing private and/or confidential information also prevents third parties from disclosing the information provided they have been given notice of the injunction. The principle is based on the need to ‘hold the ring’ pending trial: if other people publish the information the claimant is seeking to protect, that will frustrate the purpose of the claimant’s proceedings. This is of course the reason why lawyers representing claimants in privacy cases normally circulate to media organisations the details of any injunction they have obtained as soon as possible after it has been made.”

So unless the lawyers contact everyone on twitter to inform them of the details of the injunction then they cannot prevent people on twitter disclosing the information. Bit of a Catch 22 really.

People Power 2

As you might be able to tell from the last post, I’ve been spending a lot of time thinking about this, and it is impossible to get away from. My understand of the legal side of this has clarified further in the past 24 hours, particularly after reading the following article: Revealed: The four celebrities who could face huge legal bills for naming Ryan Giggs on Twitter over Imogen affair

A Couple of things struck me

1) Only the Daily Mail and the Evening Standard seem to be running this slant on the story at the moment
2) Most of the “celebrities” named are actually employed in some fashion by a newspaper

I’m trying to discover exactly how an injunction works, but the more I think about it, the more that I am convinced that the only twitter users that could possibly be prosecuted for breaching the gagging order are people who are employed by a newspaper or other media body.

My understanding of how injunctions work are as follows

Party A goes to court to obtain an injunction to stop Party B telling people Fact X.
The Court grants party A the injunction.
The Court must in some way communicate that injunction to Party B in order that Party B understands the nature of Fact X – exactly what it is they are not allowed to say.
If Party B now still publishes Fact X they are in contempt of court and can be prosecuted with criminal charges.

What I am not clear on is the following.

Party C has, through a completely independent source, discovered Fact X to be true. They have never had a injunction order communicated to them, nor can they discover the exact details of that injunction because the key pertinent points are subject to the secrecy of the injunction. Therefore Party C decides to communicate Fact X to people known to him using the means of communication that he typically uses. How can Party C be guilty of breaching an injunction, the details of which he had no way of knowing?

To put this into English, the injunction sought by Ryan Giggs’ Lawyers (Party A) was directed and communicated to the news media (Party B) in the UK. I assume in doing so the name of Ryan Giggs was also communicated to those institutions in order that they understood exactly who they were not allowed to name. The wide variety of users of twitter (Party C) came upon the name Ryan Giggs through rumour and gossip on the internet and some will have had it direct from the horse’s mouth. Twitter users have no way of knowing for sure that Ryan Giggs was the actual subject of the injunction until it was discussed in Parliament. They believed it to be true, but without having seen the full injunction for themselves they could not KNOW it to be true. The only exception to this rule is those Twitter users that are employed by the news media.

I do not believe therefore that any twitter users who were not employed by the news media can be considered to be in contempt of court (clearly they are contemptuous of the court but that is a different matter)

What is interesting though is that the news media are determined to make Joe Public twitter users feel that they are in the same boat as the journalist twitter users who breached the injunction. Giles Coren works for the Times – he would have been privy to the information conveyed in the injunction and therefore would be subject to it. The fact that he has not used an official channel of his employer does not necessarily exempt him from the injunction (although I don’t even know this for sure, it depends on the detail of the injunction which – as explained above – I have no way of reading!).

Giles Coren however is in a completely different boat from the the 75,000 other people who tweed Ryan Giggs name. The vast majority of them are not employed by news media, cannot have read the injunction, cannot know what action is not permitted and so cannot be held liable for taking that action. They could be held liable under other areas of UK law such as libel and defamation law if they can be shown to be either a) wrong or b) malicious in their actions, but they are not liable for breaching the injunction.

The Daily Mail and it’s tabloid Ugly Sisters would love us all to believe that we are all in the same boat as them and they are standing up for our rights, but I do not believe that to be the case. The country’s perception of this case has been completely skewed by the news coverage of it, (which only serves to highlight the continuing power of the press) but that doesn’t mean they are right. They may quote the Attorney General who said:

“Those who I think may take an idea that modern methods of communication mean they can act with impunity may well find themselves in for a rude shock…The courts do have the power to punish those who breach injunctions. Those who decide flagrantly to do so should bear that in mind”

My reading of this is that the news media cannot resort to new technologies to get around a court order and should rightfully be punished if they do so, but nothing in his statement necessarily suggests that I could be liable for naming Ryan Giggs in this blog post for example because I cannot breach an injunction that I cannot read! The Daily Mail would love me to believe that it does, but that’s the Daily Hate for you.

However all of this highlights that a legal system based on “secret” injunctions are unsustainable in a world where everyone has the ability to broadcast content anonymously and with impunity. Such secret measures should be reserved for those case that it was originally intended – to protect the vulnerable (small children in abuse cases for example) and national security. Wasting this power on philandering footballers is frankly negligent. Instead we need to apply a proper privacy law which protects people’s truly private behaviour that is not in the public interest to be broadcast. And just to be clear – shagging a Big Brother housemate is not a private activity!

People Power vs Paper Power

I’ve been wanting to write a blog-post on the crazy snowballing story that is the “premiership footballer and Big Brother “star”” story for a while now, but each time I try to start a new development comes along that forces me to start again, frankly at this point I’ve decided to follow the example of the Scottish newspaper – The Sunday Herald – and “publish and be damned”. I warn you, this is a long one – (Shout out to Jen who encouraged me to keep going with it – enjoy!)

I have been fascinated by the constant developments in this story, not because I have any interest whatsoever in who has had their wicked way with Imogen Thomas – (Frankly I’d be more interested in who hasn’t) but because of the potential ramifications for the global media landscape.

My problem is knowing where exactly to start on this one – and I’ve decided that a timeline would make sense to help anyone who has been quite happily oblivious until they started talking about it in Parliament.

    Timeline

Stage 1 – at some point in the past year and for a number of months, a premiership footballer (married with children) has allegedly been engaging in an extra-marital affair with sweet, innocent Big brother contestant Imogen Thomas

Stage 2 –

April 14th 2011 -this footballer is granted an injunction forbidding the publication of his name or allegations he had an affair with Imogen Thomas
From what I can tell, the very same day, the existence of the injunction was reported by most national newspapers – they mentioned Imogen Thomas’s name, but in keeping with the letter of the law they referred to the footballer only as “CBT”. Now this is crucial to the story. This injunction was NOT a super injunction even though the papers have been calling it that. A “Super” injunction also bans the mention of the injunction existing at all. The fact that this injunction only banned the mention of the premiership footballers names left vast acres of room for newspaper to prompt speculation, gossip and rumour, which frankly was all they cared about.

For the next 3 or 4 weeks people who were interested or otherwise could go online and with minimal searching could have a pretty good idea of which footballer was hiding behind the courts, although there was room for some doubt. Frankly though a lot more people seemed to give a damn BECAUSE of the injunction than they otherwise would have done. Imogen Thomas managed to get herself all over TV and the newspapers looking suitably distraught at being named and shamed on her own and that was how things continued until…

Stage 3 – 8th May – a Twitter User – @injunctionsuper named the footballer who allegedly slept with Imogen Thomas. Now this wasn’t particularly interesting because there were many different places that that information could be found, but this twitter feed had two key differences

1) He listed a number of different injunctions that had been granted, but (and I think this is most important thing)…

…2) One of them was apparently completely false. The allegation that “Jeremy Clarkson has an injunction preventing the publication or mention of intimate photographs of him and Jemima Khan.”

This allegation prompted Jemima Khan and Jeremy Clarkson to both publicly announce the falsehood of the claims. In doing so they did 2 things 1) They sent lots of people to this twitter users feed – he was up to about 100,000 at the last count which apparently has led to a further 75,000 re-tweets, and 2) they gave credence to all the other claims on the feed that weren’t being denied. In hindsight I now assume that the Jemima Khan story was a known and obvious falsehood that was placed in a classing “trolling” attack. It gave the newspapers a way of writing about the twitter feed and it’s other contents without actually pointing anyone at the twitter feed in question.

Since then there have been a series of events in quick succession

Stage 4

May 17th – Imogen Thomas’s appeal against the injunction turned down on the basis that there were claims (no evidence mind) that she had been blackmailing the man in question (apparently she wanted a signed football shirt? Really?)
May 20th Newspapers report that the footballer’s lawyers have applied to acquire the information that would identify the Twitter users who breached the court order
May 22nd – The Sunday Herald print a picture of the footballer in question
May 23rd – MP John Hemming has named Ryan Giggs as the footballer subject to an injunction over his alleged affair with Big Brother star Imogen Thomas. Parliamentary privilege protects him and I believe that also means that I can report those basic facts.

In the past week, this has effectively become the biggest story in the news – literally front page news on every newspaper of every quality in the country. Something that would only ever have warranted a mention in the Sun and maybe the opinion section of the Times is now a matter of gossip for half the country. And the funny thing is, most of us don’t even care who shagged who, what we are all talking about is what this means for our legal system, our newspapers, new media technologies and most importantly our personal freedoms and rights and how they conflict with each other.

The first question then:

“What does this mean for our legal system?”

OK, I’m not going to pretend that I know the answer to this one, my law degree finished 12 years ago and frankly hadn’t even considered the impact of the internet, but there are a number of questions that this case raises that are fascinating.

1) How can an injunction take effect against unnamed parties? Surely the point of an injunction is to be able to compel one or more named parties to desist from an action (or in some cases take action). If I am not a named party and do not receive an order, how does that order somehow still apply to me? If I am Imogen Thomas’s best friend and I already know the nature of the relationship and I choose to twitter about it after the newspapers were served with an injunction, am I somehow in contempt of a court order that told someone else to do something but who never spoke to me about it? The only reason I would be aware of the injunction at all is because of the newspapers reporting it!

Surely if an injunction has general effect on the entire population, then it is a “law” by any other name and from what I remember from constitutional law (not much admittedly) it is a fundamental rule of our constitution that powers be separate and the judiciary must NOT make laws.

The only way for an injunction order to truly take affect against me as a twitter user is for me to recieve that order against my twitter name. this would mean that every twitter user would have to be contacted with the injunction order to tell them exactly what it is that there weren’t allowed to talk about. That would kind of defeat the point…

(Don’t confuse this with the idea that the courts are bringing in a Privacy law from Europe by stealth – I have no constitutional issue with Judges applying a law that has been handed to them by whichever legislature they have been instructed to answer to, my problem is with them creating lots of laws that affect me.)

Question2 (more pertinently as a media strategist):

“what does this mean for news institutions?”

The knee-jerk reaction is that this whole debacle is a the death knell for our news industry. I actually think quite the opposite. I think that in the past few weeks the newspaper industry has demonstrated their continuing power and resiliance. Only newspapers can reach tens of millions of people with the same headline in a given day. If it weren’t for the Sun, then no-one would have been on Twitter trying to find out the news that they couldn’t publish. I think that newspapers are catching up fast and are as able and willing to embrace new technologies as any of their readers might be. I actually think that in the Jemima Khan story we have witnessed an inspired piece of “trolling“. By placing that crazy story, they managed to get the typical response of the “trolled” to overreact and protest vehemently at the wrongness of the troll. In turn that gave the newspapers some tangible names to write about. Maybe that’s all a bit conspiracy theory, but given the recent phone-tapping outbreaks, would we really be surprised if those same people had been responsible for something like that?

It is the newspapers that are driving the agenda here, it is the newspapers who are broadcasting the relatively private and inconsequential twitterings of the masses. Twitter didn’t make this happen, they just talked about it a bit. I think that it is particularly interesting that only 100,000 people are following @injunctionsuper, but I reckon that the Sun has added siginificantly more readers than that during this period.

So what does it mean for new media technologies?

Do we think that Twitter users in the UK are going to suddenly have to watch what they say? Frankly, no. a) Twitter is based in America and it will require an almighty effort to force them to release the relevant information to identify Twitter users and b) The legal system will always be too slow to keep up with new developments. The internet is like the Hydra, if you cut off one head about 12 more would happily jump into its place and no amount of legalese would be able to fill the loopholes that individuals would find to get round the specifics of the laws. That’s the beauty of our legal system, people need to know that laws apply to them and so they have to be crafted in a specific and precise manner. That also means that you can’t legislate for crimes that don’t even exist yet, so future technologies are safe. If you could legislate against future crimes, then new creations such as “legal highs” would already be illegal before they had even been invented.

So what does it mean for our personal freedoms and rights?

It seems to be a conflict between a freedom of speech and a right to privacy.

At the moment I’m most worried about the freedom of speech, mainly because some judges in our legal system think that they have the right to pass judgment not just on what newspapers can print, but the conversations I can have with my friends, family and associates. That’s just scary.

Since 9/11 there have been repeated attempts to pass laws about what private individuals can and cannot say to each other – the “incitement to racial hatred” laws being the notable example that caused significant controversy, and this case seems to be continuing that trend.

I don’t see how there is an easy fix for either the courts or Parliament to legislate around the likes of Twitter though and so I worry that they could take the more draconian option of placing legislative restriction on social media usage or insist upon the right of surveillance. As long as the US uphold their constitionally enshrined freedoms we’re probably safe from that, but the US government and Supreme court have been known to throw those principles out of the window when it suits them. The case against Wikileaks and the foolish Private who released half of their military secrets is such an example.

The right to privacy is another potential casualty here and I’m slightly less worried about this. The right to privacy is NOT the right to have everything that you would prefer to be private to stay private. Surely the right to privacy is the right to not have your privacy invaded when you have every normal expectation of it remaining safe. If someone is sleeping with a renowned publicity whore then they cannot have any expectation that information around that will stay private. Imogen Thomas was on Big Brother for god’s sake, doing anything with her if you are a celebrity is the definition of public.

Surely therefore the legislation should not focus on the information that is disseminated by our news broadcasters, but instead should focus on the invasive practices they use to extract that information. We should enforce with the full strength of the law the laws against phone tapping and entrapment and maybe make some new ones about any other “spying” type technologies. We should not allow our press to invade the lives of people who are doing their best to live it out of the public eye, but equally, freedom of speech is such an important freedom that we must protect it at all costs and if that means we lose some of our right to privacy (that we never really had anyway) then so be it.

OK that’s it for now!

Straying into an alternative territory

OK, I don’t normally blog about political issues because frankly there are many people who know an awful lot more than me in that area and I’d be opening myself up to a barrage of criticism. Then again, I figured that to get a barrage of criticism would mean that lots of people would have to read this and there is no danger of that, so here goes

Tomorrow is the big referendum on the new AV (Alternative vote) system and the media have today finally decided to try to explain to people what they are voting for.

Today,the Independent printed a list of the arguments for and against the Alternative Vote. This article in itself was quite interesting. By presenting both sides of the argument, the newspaper was trying to live up to its name however, when you got into the meat of the article (seen here) then it is difficult to not conclude that the Independent are firmly in favour of reform as they proceed to debunk all of the “No” arguments and support all but the least convincing of the “Yes” arguments.

I’m happy to state that I will be voting “Yes” tomorrow because I agree with the simple argument that “It is a step in the right direction” and that the “If it aint broke don’t fix it” attitude is fundamentally flawed as the current system is “broke” and I’m also pretty sure that the same argument was used against the suffragettes 100 years ago.

However, there is one argument that I think is missing from the “Yes” vote and this is the main reason that I will be voting:

A great deal of commentary has suggested that AV would have produced very similar results in the last few elections as to the result that we actually got. It would have exaggerated the Labour swing in 1997 even further and we would still have a Coalition government today. However, that analysis assumes that people would have kept their same first preference vote if they were able to record a 2nd, 3rd and 4th preference vote. But I simply don’t believe that would be the case. A lot of younger voters vote for Labour or Conservative, not because they believe they are the best party to represent their interests, but because they believe that they only really have a choice of two. If you have to place up to 4 preferences then people will have to start to consider the relative merits of more than just two parties and so might start to consider the realistic possibility that it doesn’t have to be a two party system any more.

If I have an alternative vote, I will be liberated to place my first vote where my true convictions lie rather than just place a vote in order to keep my most hated party out.

All too often in FPTP elections I have voted for Labour, not because I approved of their policies, but because I couldn’t stomach the Tory ones and a vote for anyone else was completely wasted. Under AV I could vote for the independent candidate or the Green candidate or the Liberal candidate and use my vote as a statement of my true beliefs and at the same time I can place 2nd, 3rd or 4th preference vote which might also affect the final result. The big question is, how many other people would have done the same, how many people have in the past voted for their 2nd or even 3rd preference because it was the only party with a chance of winning?

AV might not show a huge change in voting patterns in the next election, because a lot of people will justify their previous voting behaviour and continue to vote according to habits, not beliefs, but I believe that in 3 or 4 elections time as new generations of voter arrive without the baggage of their parents we could start to see a shift towards a wider spectrum of voting habits that more accurately reflects the nations attitudes.

I know that AV won’t solve the problem of getting a truly representative government, but in my idealised world I would hope that as people start to value their vote more highly they will start to see the benefits of a truly proportionate and representative system and there will be enough minority representatives in our government, that maybe, just maybe, we can make it happen.

Well, fingers crossed for a miracle, all the bookies are suggesting that my hope is forlorn, but stranger things have happened.

D.