Monday, May 09, 2011

Do You Want To Know A Secret?

Pangloss thought she was really going to write something serious about superinjunctions after the #Twitterstorm got on her nerves this morning, but it seemed by the time she got time that everyone else had written about it already. Including of course, David Allen Green.:)

Then she worried a bit about what the effect of all this might be on Twitter itself, rather than the celebrities, the newspapers, or the courts. Intermediaries worry a lot about being the ones who take the flak for the actions of their users. As a result most have abuse policies which boil down to "complain and we'll find a clause in our T & C which lets us take down the offending comment or possibly even kick the blighter off our site".

What worried me, then, was the suggestion this a.m. (which I now can't find, but believe me, it's out there) that Twitter could automatically redact tweets which threatened to infringe superinjunctions (ah found it!). Because I very much doubt they can . I suspect all they do right now is take down, in whole, on complaint, and that may not satisfy irate celebrity lawyers. Twitter is very very much more likely only to be able to automate removal of every tweet (and all of it) featuring say Jemima Khan's name . Or Gordon Ramsay's. Or um Andrew Marr. Even tweets by these people themselves. And that would er just be silly.

But then I remembered there's a fairly clear set of directions in the injunction Demon Internet got the court to approve way back in 2001, when they worried that one of their subscribers would break the court ban on revealing the new identity of Venables, one of the killers of Jamie Bulger.

An ISP shall not be in breach of the injunction unless it, or any of its employees or agents:

Knew that the material had been placed on its servers or could be accessed via its service, or

Knew that the material was likely to be placed on its servers or was likely to be accessed via its service, and, in either case

Failed to take all reasonable steps to prevent the publication."

Twitter isn't an ISP but the responsibility (and thus risk) seems similar or greater than a mere ISP. But what are "all reasonable steps"? Having a decent abuse policy? Providing the identity of alleged infringing tweeters on request? Providing it on court order? More? Yet more privatised filtering coming our way? Le sigh. (Hard to believe the ECJ would back that last though, the way SABAM seems to be going.)

But what I really ended up wanting to say wasn't a legal point but this quote which I found by an anonymous commenter at the end of one of the Guardian pieces.

The naming of celebrities still feels like a moral victory: as though we've usurped the rich and powerful. Celebrity superinjunctions annoy me not because of potential hypocrisy or controlling what I can and can't know (though those things do annoy me), but because it's wealth privilege on display. If I had an affair, and if for some reason the newspapers saw fit to print information about it, I wouldn't be able to get a superinjunction. I couldn't afford it.

So there you go. Superinjunctions, and their accompanying deconstruction and storm of comment, aren't about privacy vs freedom of expression. Or sex vs sensible journalism, tabloids vs broadsheets, the UK v the ECHR. or even the English High Court and Justice Eadie vs the Rest of the World. They're about power and the proletariat. Now can we go back to talking about stuff that matters, like jobs and health?

And why hasn't Wikileaks published that list of celebrities already anyway??

EDIT: Useful piece in OUT-LAW today about whether Tweeters could be done for contempt of court if accurately infringing outstanding injunctions cf @superinjunction.

One of the big issues is if a Tweeter as opposed to a media organisation would have had sufficient notice of the injunction, without actually having seen it or read it - Kim Walker thinks yes.

Another is anonymity - a Norwich Pharmacal order would work in UK, but will it work against Twitter whose HQ is in US? Walker thinks Twitter UK would request its US parent to seek a US order. Interesting - my own thought was that as with this case of the billionaire and allegedly libellous pseudonymous comments on Wikipedia, it would be up to the aggrieved celebrity to seek the US subpoena themselves. But again, seeking the ID itself, might be another of those "reasonable steps" Twitter as platform would have to take to ensure it was not itself in contempt?

An interesting point several commenters have brought up is that if a Twitter account is deliberately spreading false rumours the appropriate action would be not breach of confidence but libel, and that this would apply not just to the original accountholder but all the RTs. Litigation heaven beckons :) One wonders if the Jameel rules on abuse of process (previously used to restrain libel tourism) might not intervene here to stop the courts being flooded with thousands of Norwich Pharmacal orders...? (Note also that if the allegations were accurate, RTing would involve those who reweteeted as also breaching confidence - and yadda yadda, but more litigation hell..)

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