Who is using whom?
How social media can be exploited by mainstream media.
By David Allen Green Published 16 May 2011 16:22
Back in October 2010, the Guardian website published a rather curious and precisely worded post stating it had been gagged from publishing a parliamentary question. Within minutes, Twitter users had decoded this cryptic piece and identified one of the parties involved as Trafigura.
What was perhaps most significant about this episode was not so much the industry and ingenuity of Twitter, but the lingering suspicion that the Guardian knew full well that this would happen. It appeared to me that the Guardian was having its cake and eating it: abiding by the terms of the injunction (as at least as contended by Trafigura's lawyers) but also ensuring that the information got out there all the same.
The publication of "superinjunction" tweets last week may be a similar sort of exercise. Of course, it may be possible that the tweets were put together by some media law enthusiast, based on public domain information, guesswork, and rumour. However, what is more likely is that they were published by someone within the mainstream media with the intention of the tweets "going viral" on Twitter.
If so, then it may not so much be an example of social media circumventing the jurisdiction of the courts as the mainstream media doing so at arm's length.
For all its merits, social media remains largely parasitical in its relationship with mainstream media, especially in respect of emerging legal news. In this case, it is difficult to conceive how Twitter users could have come across any of the alleged "superinjuctions" without someone in mainstream media first feeding in the required information.
It may well be that Twitter and other social media provide fundamental challenges to privacy and similar injunctions. That is certainly how some in both social media users and mainstream media would like it to be.
But it may also be the case that the mainstream media are just seeking to exploit social media in trying to defeat properly obtained injunctions protecting sensitive and private information. And, if so, the feeling of being used for such commercial ends is not a pleasant one.
David Allen Green is legal correspondent of the New Statesman and a media lawyer.
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10 comments
Why do mnay celebs use superinjunctions? Because they're not afraid to throw their money and power around.
It's now fact that Tiger Woods and his former wife split up because of his numerous affairs. It's also a fact that he used his immense wealth and power to control the media and other golfers as well. Many other golfers knew about his affairs but never told his now former wife. Didn't she deserve to know?
Then again, can you name one person that would recommend not getting the most expensive (the best) attorney you can find?
Lawyers should be advising their clients to come clean and tell the truth. Its often the cover ups that create more problems than its worth.
The story will out in the end, and its usually better now than later.
"it is difficult to conceive how Twitter users could have come across any of the alleged "superinjuctions" without someone in mainstream media first feeding in the required information"
Perhaps it was down to people in the media. But there are many other people who are aware of the superinjunctions - lawyers, publicists, other parties in the cases which have been injuncted, those who work for those who hold the injunctions, people who meet any of those in the former categories socially.... Any or all of these are points where information might sneak out into the social networks
"What was perhaps most significant about this episode was not so much the industry and ingenuity of Twitter, but the lingering suspicion that the Guardian knew full well that this would happen. It appeared to me that the Guardian were having their cake and eating it: abiding by the terms of the injunction (as at least as contended by Trafigura's lawyers) but also ensuring that the information got out there all the
same."
And, I submit, this was absolutely the morally and ethically correct course of action to take, and that Trafigura's superinjunction was utterly reprehensible. You're notably failing to address this aspect of the matter.
For "Super Injunctions" to work, many people have to know about them. Such information is bound to leak and there will be plenty of people who are opposed in principle to such gagging orders. It does not require a conspiracy involving the commercial interests of the main stream media for this to happen. It's in the DNA of the Internet and social networks.
From what I read of most of these privacy injunctions, they are largely there to avoid the revelations of the misbehaviour of (mostly) wealthy man. That's not enough, in my view, to justify the judicial censorship of free expression by involved parties.
Why is it "more likely" that the Tweets last week were an inside job? There was inaccurate information in those Tweets. That says to me that they were compiled by someone outside the circle of knowledge joining dots. Most of the names on that list had been discussed extensively on Twitter already. Only two were news to me, and one of those turned out to be false.
Finally someone is bringing some sense into this debate. Rather than raving on front pages how technology is putting an end to privacy, we should ask ourselves why British society has become so obsessed with celebrities and private matters of others and what this means for our democracy. It is true that privacy laws can threaten public debate and result in the state deciding what we should and shouldn't know and concern ourselves with. Max Mosley's demand for a prior notification obligation would have been an outrageous curb on media freedom.
But those privacy laws are only a reaction to a tendency that is a lot more worrying: British society's increasing "addiction" to even the most irrelevant gossip. Media actors, pursuing commercial interests, feed us with topics that we are instinctively interested in, that satisfy some ancient craving for gossip and sensation, i.e. that entertain us. Being told part of the story we want to know more, and the media doesn't hesitate to provide us with more. The media doesn't merely supply what the public is interested in - it creates interests. In § 136 of Campbell v Mirror Group Newspapers, Baroness Hale effectively finds some "public interest" in even the most trivial celebrity gossip, because without such gossip even less papers would be sold. But it is exactly this kind of information that distracts us from important political matters, that takes up column space and capacity from democratic debate! How did it come to this?
"this was absolutely the morally and ethically correct course of action to take, and that Trafigura's superinjunction was utterly reprehensible"
What is reprehensible about a company seeking an interim injunction to prevent publication of confidential information before a trial? It may well be the case that the information was of "public interest", but surely it is for the Courts to balance privacy/confidentiality and freedom of expression, based on all the information, rather than for the tabloids (or Tweeters) to do so based on rumour, gossip.
I was also somewhat suspicious of the motives behind the superinjunction-breaking Twitter account; particularly given the very rapid response from certain tabloids, using the events to contrast the "vile lies" being spread by irresponsible people on Twitter with the honest truths told by them...
@stevejones-
Firstly, why is the fact that some (maybe most) superinjunctions protect wealthy men relevant? Would they be any more/less wrong if they protected poor women?
Secondly, it's not just them that are being protected. A husband/father having an affair is likely to form a key part of the private life of his wife and children. Not publishing protects them too when they've done nothing remotely wrong.
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