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!

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