John Band / SID 311089070

ARIN6902: Internet Cultures &Governance

Does the UK Twitter super-injunction furore show that social media hasmade it impossible for courts to enforce free speech restrictions? What does this mean for the future of online political discourse?
John Band, SID 311089070, June 13, 2011 Privacy law in the UK has come under intense scrutiny and pressure over the last two years. Activists have used social media services to reveal the identities of people protected by legal injunctions banning the disclosure of particular facts about themselves. Such legal injunctions are granted in the UK1 based on the courts interpretation of Article 8 of the European Convention on Human Rights, which guarantees the respect for private and family life, home and correspondence (ECHR, 2010).In some cases, referred to in the press as superinjunctions , the legal injunction extendsto banning the disclosure of the fact that it exists, because publishing the individual s name might undermine the utility of the restraint (Cohen, 2011). The first prominent super-injunction case affected by social media concerned Dutch oil company Trafigura. Toxic waste was disposed of illegally in Cote d Ivoire by Trafigura scontractor, in breach of law and leading to significant injuries (Minton, 2006). When the UK s Guardian newspaper sought in September 2009 to publish an internal report commissioned by Trafigura that highlighted its behaviour, the company took out a super-injunction against the Guardian that demanded secrecy both about Trafigura s actions and about the lawsuit itself (Rusbridger, 2009).In October 2009, after MP Paul Farrelly raised the cause under Parliamentary privilege, the Guardian ran a front-page article headlined Guardian gagged from reporting parliament: legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret (Leigh, 2009). This allowed people to look up Farrelly s question in parliamentary journal Hansard, and hence to publish the details of Trafigura s actions on Twitter. Trafigura became the most used term on Twitter on October 13, 2009, and details were published on prominent blogs, ultimately leading Trafigura to withdraw the injunction shortly before the Guardian challenged it in court (Bunz, 2009).The injunctionitself was then published by the Guardian. Farrelly and Guardian editor Alan Rusbridger both described the case as an example of public interest reporting, which is a legitimate defence under Article 8 of the ECHR.Trafigura was subsequently fined 1m in a Dutch court for illegally exporting the waste, as well as paying 150m in compensation to African victims (Evans, 2010).
England & Wales, Scotland and Northern Ireland are three separate legal jurisdictions with separate judicial systems and no federal law. However, there is no practical way of discriminating between them in terms of online content restrictions, they share a common Supreme Court, are all bound by the ECHR, and follow precedents set in other UK jurisdictions (as well as other Common Law jurisdictions such as Australia) unless they are directly in conflict with established legal principles in the jurisdiction in questio n. The law of England & Wales is referred to as English law. UK law is not a formally defined concept, with no overarching legal concepts binding the three jurisdictions, but is used to refer to laws and court judgements that are effectively identical in all three jurisdictions (Direct.gov.uk, 2011).
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John Band / SID 311089070 Super-injunctions became a major topic again in 2011, as injunctions and super-injunctions that had been taken out by celebrities to cover up sexual indiscretions were disclosed on Twitter and elsewhere. In early 2011, John Hemming MP also used Parliamentary privilege to name former Royal Bank of Scotland CEO Fred Goodwin as a plaintiff in a super-injunction that banned the disclosure of his affair with a colleague, and footballer Ryan Giggs as a plaintiff in an injunction which banned his former lover from publishing details of their affair (Greenslade 2011, Saner 2011). On May 8, 2011, the Twitter account @InjunctionSuperlisted details of six alleged super-injunctions, including the Giggs injunction. In the following two weeks, 30,000 peopletweeted the identities of people involved in these cases(Wright, Brown & Peck, 2011). Following the Australian court precedent of Dow Jones vsGutnick(2002),the tweeters and Twitter itself were in breach of English law. After the US-based Wall Street Journal accused Australian businessman Joseph Gutnick of tax evasion, Gutnick sued its publisher Dow Jones for libel in Australia. The Australian High Court ruled that, since hundreds of Australians had read the WSJ article online, it had jurisdiction for the case, as a result of which Dow Jones settled the case. In the US, where the Supreme Court s interpretation of the First Amendment protecting free speech in New York Times vs Sullivan (1964) led to reduced libel protection for public figures such as Gutnick, it is unlikely Gutnick could have won (Goldsmith & Wu 2006). So although Twitter is locatedin the US, as long it is viewed in England& Wales, it must conform to English law which requiresit to take down material in breach of the injunctions after being informed that the material is infringing, and to provide the details of its users to English authorities if presented with a court order. Kim Walker, media law expert at law firm Pinsent Masons, said (OutLaw.com, 2011): "In the UK an individual would apply to court for a court order called a Norwich Pharmacal Order to require the release of the information. But because Twitter is based in the US a UK court would have no jurisdiction to enforce the order against Twitter. The UK court would have to write to its US equivalent asking it to impose a request for information. It would then be up to that court whether to issue Twitter with an order to disclose the information As of June 12, 2011, Twitter had not removed the @injunctionsuper account or its content. Even though the super-injunctions remain in force, anyone in the UK or elsewhere can still visit the Twitter page. At first glance, this would appear to highlight Malcolm (2008, p18) s portrayal of the internet as a supra-territorial free speech zone, where users/citizens interact online in fora beyond the state s control, forming their own supra-territorial networks of relations . However, this overlooks a key aspect of the case. Twitter is headquartered in the US, and the injunctions in question do not apply under US law, because the First Amendment resolves the tradeoff between free speech and other concerns much more decisively in favour of free speech than laws elsewhere. Goldsmith & Wu (2006) make the point that libertarians want to extend the unusually tolerant values of the U.S. First Amendment across the globe .The reason the anomalies in the super-injunctioncase are able to arise is that Twitter is breaking English, but not US, law whereas US companies dominate the internet. Hrynyshyn (2008, p760) says, That the international scale of US power is taken for granted in so much of the world makes it easier for the USA to [ ] continue to exercise control over the system that it created .

John Band / SID 311089070 If Twitter users were breaking US law, Twittercould rapidly be forced to remove the relevant content, as has been seen in cases where US copyright law has been infringed. While the First Amendment generally takes precedence when free speech conflicts with privacy and defamation concerns, it has much less importance when considering copyright issues (Olson 2009). As a result, theapparent freedom from legal concerns that Twitter demonstrates when dealing with overseas courts is not followed when dealing with the enforcement of US copyright laws (Glass, 2011). Even beyond the specific prejudices associated with US law, there are other factors which make the Twitter super-injunction case relatively unusual. As a high-profile startup which has so far only monetised its user base to a limited degree, but which has large venture capital funding, Twitter is not heavily reliant on advertising revenues for short-term cashflow: sales were US$50 million in 2010, compared to the company s valuation of US$3.7 billion (Oreskovic 2011). Even of these sales, a negligible proportion comes from UK clients, and Twitter does not currently have a physical or legal presence in the UK. As Goldmith& Wu (2006) point out, governments can use their coercive powers only within their borders, and can control offshore Internet communications only by controlling local intermediaries, local assets, and local persons . If a company such as Facebook, which reportedly receives 85m a year from advertising in the UK (Sweney, 2010) were to find itself in Twitter s position, it would have a more challenging time in balancing any professed commitment to free speech with its responsibility under English laws, as significant amounts of real money would be at stake. Twitter s position, under which publicity, an edgy reputation, and user growth, are more important than working with governments to ensure continued financial success, is different from that of many media organisations. Overall, although Twitter allows users to anonymously circumvent English privacy laws without the serious prospect of sanction, this is a temporary situation brought about by the company s current corporate status. As Flanagin et al (2010, p192) accurately state, cyberspace will ultimately be controlled by those controlling society at large, namely large corporations with interests that are often at odds with those ascribed, perhaps idealistically, to the early denizens of the internet . Twitter s interests temporarily coincide with First Amendment values over upholding English laws, but the increased corporatisation of the internet means that such decisions are dependent on the whims of corporations, rather than being inherent to the platform. Beyond the concept of the legal sustainability of Twitter s challenge tocountries restrictions on free speech, it is also important to consider the question of the effect that the erosion of English privacy laws has on political discourse. Some view this kind of change as inherently positive most clearly Barlow (1996), who says, the promise of a new social space, global and antisovereign, within which anybody, anywhere can express to the rest of humanity whatever he or she believes without fear . In a related context, Christensen (2011) argues that on the internet, an array of creative forms of participation has appeared transgressing the traditional distinction between private and public life . While online political participation is often derided as slacktivism , with little put at stake and little achieved, this is not the case in the context of many Twitter free speech campaigns. The users who mentioned Trafigura s activities, and those who re-tweeted @injunctionsuper s comments, were technically putting themselves at risk of jail for breaching court injunctions.

John Band / SID 311089070 Another example of Twitter turning armchair users into genuine activists is the #iamspartacus campaign that took place on Twitter in November 2010. English accountant Paul Chambers tweeted in January 2010 after heavy snow led to UK-wide traffic chaos "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!" Although this was clearly a joke, and prosecutors were given legal advice that it would be impossible to prosecute as a terrorist threat, Chambers was instead convicted and fined under an archaic 1930s law against nuisance telephone callers. After Chambers initial appeal against conviction failed, thousands of tweeters re-tweeted Chambers joke with the hashtag #iamspartacus to highlight the perceived absurdity of the prosecution and the impossibility of prosecuting them all for the same offence (Siddique, 2010). Twitter users also raised funds for an appeal to the English High Court, which will take place in November 2011. There is a clear public interest both in the Trafigura case and in the Chambers case: there was a strong argument in both contexts that a miscarriage of justice had occurred, and so the mass defiance that took place on Twitter can be seen as an act of civil disobedience in line with those carried out by civil rights, women s rights, gay rights and pro-environment protestors throughout the last 50 years. However, the more recent super-injunction discussions are not cases of public interest in the same sense. As UK politician Alastair Campbell said, This is not the Trafigura case, we're talking about the sex life of a footballer (Saner, 2011). Despite the fact that Loader (1997, p9) was writing almost 15 years ago, his view is still accurate when considering many of the super-injunction cases: much that is currently narrated on the Internet has more in common with the soundbite politics which epitomises the commodification of political discourse rather than informed political dialogue . Deibert&Rohozinski (2008) s concept of uncivil society as distinct from civil society is relevant here. They highlight the fact that most scholarship on civic networks has focused on nonviolent, broadly benevolent groups with aims that it is easy for people with a western liberal background to sympathise with, which are generally viewed as civil society but that the features which allow the internet to be an effective tool for civic engagement are also easily used for the converse.While their take on uncivil society is primarily focused on armed movements and criminal gangs, there is an analogy to some aspects of privacy law: if a piece of information is not in the public interest and its disclosure can cause harm to innocent individuals, then it is hard to class those disclosing it as part of civil society . There have been clearly been some examples of online breaches of anonymity orders that fall into the uncivil society bracket. One is the publication of details of the new identity of Jon Venables, convicted of murdering a toddler in Liverpool, England, when he was 10 years of age and subsequently released on parole as an adult with a new identity. A court order banned the publication of his new identity in order to prevent a serious risk of vigilante attacks (Hines & Ford, 2010), but details of this identity were revealed by a pro-vigilante website in May 2011 (Herald Sun, 2011), putting Venables life at risk and forcing the UK government to create another new identity for him.There have also been cases where details of children who are the subject of family court proceedings have been placed online despite anonymity orders, although the same restrictions often prevent their reporting.

John Band / SID 311089070 Revealing the details of celebrities love lives does not fall into the same level of uncivil society as breaking injunctions to prevent violence or protect vulnerable children. However, it also clearly does not fall into the civil society definition of defending the public interest from unjust laws. As Solove (2007) says, we protect people from having their reputation unjustly ruined because we respect their dignity [and] with true information, there s no way to put the secret back in the bag . He presents the interesting question, we might be entitled to have falsehoods about us cleansed away, but are we entitled to a reputation free from the stain of truths? This echoes Marshall McLuhan s description of the media as early as 1967 as one big gossip column that is unforgiving, unforgetful, and from which there is no redemption, no erasure of early mistakes (McLuhan & Fiore 1967). On the other hand, the impact of privacy injunctions has always been limited, with media circles long aware of rumours that could not be reported in the national press, and magazines such as Private Eye in the UK or Le Canard Enchaine in France obliquely hinting at such stories in a way that allowed intelligent observers to put the pieces together so how much have things really changed? Campbell makes this point well: there has always been a group of people who will know about the issues underlying an injunction. All Twitter has done is accelerate the scale and speed of that. (Saner, 2011). [2,543 words]

References
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John Band / SID 311089070 Bunz, N. (2009) Twitter can't be gagged: online outcry over Guardian/Trafigura order, The Guardian, October 13, 2009. Available at http://www.guardian.co.uk/media/pda/2009/oct/13/twitter-onlineoutcry-guardian-trafigura [accessed June 12, 2011] Burrell, I. (2011) A legal crisis in 140 characters, The Independent, 10 May 2011. Available at http://www.independent.co.uk/news/media/online/a-legal-crisis-in-140-characters-2281582.html [accessed June 12, 2011] Cohen, M. (2011) The super-injunction: what is it and does it matter?,The Drum, 26 May 2011. Available at http://www.abc.net.au/unleashed/2730684.html [accessed June 12, 2011] Evans, R. (2010) Trafigurafined 1m for exporting toxic waste to Africa, The Guardian, July 23, 2010. Available at http://www.guardian.co.uk/world/2010/jul/23/trafigura-dutch-fine-waste-export [accessed June 12, 2011] Greenslade, R. (2011) Law is badly in need of reform as celebrities hide secrets, Evening Standard, April 20, 2011. Available at http://www.thisislondon.co.uk/markets/article-23943177-law-is-badlyin-need-of-reform-as-celebrities-hide-secrets.do [accessed June 12, 2011] Herald Sun (2011) Killer of UK toddler James Bulger 'gets second new identity after security breach', Herald Sun, May 5, 2011 http://www.heraldsun.com.au/news/world/killer-of-uk-toddler-jamesbulger-gets-second-new-identity-after-security-breach/story-e6frf7lf-1226050405324 [accessed June 12, 2011] Hines, N. & Ford, R. (2010) Naming Venables makes him vigilante target, judge warns, The Times, March 9, 2010. Available at http://www.timesonline.co.uk/tol/news/uk/crime/article7055123.ece [accessed June 12, 2011] Leigh, D. (2009) Guardian gagged from reporting parliament, The Guardian, October 12, 2009. Available at http://www.guardian.co.uk/media/2009/oct/12/guardian -gagged-from-reportingparliament [accessed June 12, 2011] Oreskovic, A. (2011) Research firm sees Twitter s ad revenue tripling, Reuters, January 24, 2011. Available at http://www.reuters.com/article/2011/01/24/us-twitter-idUSTRE70N5P220110124 [accessed June 12, 2011] Out-Law.com (2011) Super-injunction Twitter user in contempt of court if tweets were true, The Register, 10 May 2011. Available at http://www.theregister.co.uk/2011/05/10/super_injunctions_tweeter_in_trouble_if_its_true/ [accessed June 12, 2011] Rusbridger, A. (2009) Trafigura: anatomy of a super-injunction, The Guardian, October 20, 2009. Available at http://www.guardian.co.uk/media/2009/oct/20/trafigura-anatomy-super-injunction [accessed June 12, 2011] Saner, E. (2011) The conversation: Ryan Giggs an opened secret, The Guardian, May 28, 2011. Available at http://www.guardian.co.uk/commentisfree/2011/may/28/the -conversationsuperinjunction-giggs [accessed June 12, 2011] Siddique, H. (2010) #IAmSpartacus campaign explodes on Twitter in support of airport joker, The Guardian, November 12, 2010. Available at http://www.guardian.co.uk/technology/2010/nov/12/iamspartacus -campaign-twitter-airport [accessed June 12, 2011] Sweney, M. (2010) Facebook lifts UK digital display revenue, The Guardian, March 31, 2010. Available at http://www.guardian.co.uk/media/2010/mar/31/facebook -digital-display-ads [accessed June 12, 2011] Wright, O., Brown, J., & Peck, T. (2011) 30,000 Twitter users could face legal action over gag breaches, The Independent, 23 May 2011. Available at http://www.independent.co.uk/news/media/online/30000-twitter-users-could-face-legal-actionover-gag-breaches-2287787.html [accessed June 12, 2011]

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