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How does the law deal with an open secret? If it’s the United Kingdom the process is known as ‘super injunctions‘, essentially forbidding any person, or publication from mentioning what a court has proscribed. While many other countries have legal processes to limit reporting – in Canada naming someone under 18 years old charged with a charged with a criminal offense is in itself a crime – the UK has a history of using gagging orders not only for court proceedings and national security issues, but also to ‘protect’ individuals from privacy violations.

It all sounds fine – both legally and ethically, and in most cases a necessary code of common law and legislation – but the case of UK Footballer Ryan Giggs, and how British courts attempted to prevent him being named in the media, highlights the absurdity of extending beyond the relative control of traditional media, to the masses on social media platforms.

The story begins a few months ago when lawyers for Ryan Giggs successfully pleaded in UK court to prevent him being identified as the ‘alleged’ person of interest in an affair with reality TV ‘star’ Imogen Thomas. If the case alone sounds absurd, the implications are not. Under UK law the imposition of a super injunction prevents even publicizing that the said injunction has been granted – and the UK pretends its law defies national boundaries. Essentially anyone breaching the ban, publicizing or even sharing all or part of the proscribed information, anywhere in the world, would be liable to criminal prosecution. (you can read about the Giggs/Thomas debacle here)

What made the situation a farce, and highlighted how legal code needs to catch up, even precede, technology and culture, are the 75 000 plus twitter users who ‘outed’ Ryan Giggs. The Glasgow Scotland Newspaper Sunday Herald posting an identifiable photo on its front page, UK Times columnist Giles Coren threatened with contempt of court in a similar super injunction infraction, and finally UK Member of Parliament John Hemming using parliamentary privilege to do legally what thousands had already accomplished through social media, and naming Ryan Giggs in public. In the first instance the Sunday Herald, I would say bravely, forced an England court to act across a national frontier in support of its super injunction – which it subsequently decided was impractical. In the second, the court decided the information Giles Coren had published was already well within the public realm through social media – in essence, he was reporting on ‘reports’ so no contempt of court. In the third, MP John Hemming highlighted the absurd pretension that a national gag order has any real effect in a social media information age.

The British Prime Minister, David Cameron, recognized the conflict on restricting traditional media through gagging orders, when the information was already widely distributed through social media.

“It’s not fair on the newspapers if all the social media can report this and the newspapers can’t, and so the law and the practice has got to catch up with how people consume media today,” he said. via Guardian UK

What the UK Prime Minister failed to note was this goes far beyond consumption of media, but production. Certainly we can think of many instances where information should be restricted out of a greater public or personal interest – the recent Canadian Federal election is a prime example where results from the eastern districts were published on Twitter before polls closed on the west coast (although I find that restriction debatable as to voting influence). Gagging orders, injunctions and threats of contempt of court only work if law enforcement has the resources to identify and prosecute the perpetrators. When information becomes widely available, and we live in an age where social media makes that inevitable, existing gagging laws are impractical. Restricting newspapers, TV stations, radio from publication is one matter – contentious, but in the past proven to be enforceable through criminal and civil courts. The same cannot be said for citizen journalists, bloggers, even if they hold to a journalistic ethical standard – and obviously to anyone who simply shares a link, or retweets a post. The former group have faced legal proceedings – bloggers have been sued, often unsuccessfully – it’s the shear volume of people sharing information that makes existing gagging orders unenforceable.

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  1. May 25, 2011 at 11:47 PM

    Great insight, Mat.

    If I “Retweet” some “news item” only to find out later on that it was under a gag order, should I be sued, or go to jail?

    One can argue that laws should be left intact for extreme circumstances, but the danger then is that they are applied haphazardly, or with political motivation.

    Then, suddenly China doesn’t look so bad — at least their policies are applied consistently and predictably.

  2. John Beaumont-Reply
    May 23, 2011 at 8:24 PM

    Does the fact that a law is impossible to enforce universally make it wrong or absurd? Let’s suppose that instead of the identity of an adulterer, the injunction was imposed to protect the identity of a juvenile rape victim. And let’s suppose further that millions of twitter users started revealing the name of the juvenile rape victim because it’s the fashionable thing to do. Should the justice system just throw up its hands and say “Well, it’s impossible to prosecute all of the twitter users who breached the injunction so let’s not even try”? Or should the justice system seek to prosecute those who have violated the injunction and are within the jurisdiction?

    Granted, in the context of modern social media, it is highly unlikely that a media ban is unlikely to be wholly effective. But then does any law ever successfully deter all violations of that law? Making murder illegal doesn’t stop murders, but does that mean that the justice system should stop trying to enforce the laws against murder?

    In sum, you are wholly correct that existing gagging laws will never be wholly effective. But that doesn’t mean they shouldn’t be enforced. By enforcing such laws and imposing consequences for the violation of those laws, the effectiveness of such laws can only be increased.

    • May 24, 2011 at 2:13 AM

      John – a considered reply, and one that extends the question that was raised. IMHO the law must take into balance the effectiveness of a ruling, taking into account societal norms.

      The Ryan Giggs case was not one of murder, or rape. If it were the argument around a publication ban would likely not be in the public eye.

  3. May 23, 2011 at 8:02 PM

    Post script – to the twitter commentators who DMd about Canadian law not applicable. Suggest looking at the Privy Council and how UK common law is incorporated into Canada.

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