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Twitter leaks super injunctions – Technology Hares and Legal Tortoises?

Twitter appears to be the only party benefiting from the recent super-injunctions furore as reports abound of record traffic to its UK site. Meanwhile the UK courts have been left looking toothless and out of touch.

The grant of any super injunction, a gagging order prohibiting the media from even referring to the existence of legal action, is highly controversial; but, when they can be bypassed with such apparent impunity by the myriad tentacles of social media, their enforceability and therefore value becomes highly dubious.

UK v Twit-book

They have also been seen as a “rich man’s justice” providing a large fig leaf for celebrities trying to cover up their extra-marital affairs. However, that is not quite fair and we are now seeing how they can be deployed to protect those who are clearly on the right side of the moral landscape. A ground-breaking injunction was recently granted to a mother, who wants to withdraw life support from her severely brain-damaged daughter, that specifically bans the publication of restricted information on Twitter or Facebook. However, the enforceability of such an injunction is untested and under dispute.

Twitter and Facebook are registered in the US and assumed to be outside British jurisdiction. But some argue that if the sites can be classified as ‘publishers’ of information for mass consumption in the UK, then the UK courts may be able to bite back.

In 2009 the High Court ruled that Google was merely a ‘facilitator’ and not a publisher of its content and could not be held liable for defamation from its search results. Nonetheless social media sites arguably do more than present links to other websites and should be held responsible for their content. Sites such as Facebook clearly feel they have a sufficient degree of ownership to merit the editing and censorship of offensive content. Why should they be treated differently from other types of media?

The problem with Twitter

Twitter, however, has attempted to distinguish itself. The Rules, Privacy Policy and Terms of Service effectively dissociate the social media site from its content by:

  • requiring users to confirm that they:
    • are self-publishing; and
    • consent to US jurisdiction in respect of any legal action; and
  • declaring that Twitter may not monitor, control or take responsibility for the content posted on the site.

A Twitter spokesperson said the company “strive[s] not to remove tweets on the basis of their content” but that it would remove “illegal tweets and spam”.

With the eye-watering speed at which news stories are now breaking, and the rise of ‘citizen-journalism’, it is now Twitter that gets the first chance to rule on illegality. By the time the UK courts get on the scene to assert their learned legal reasoning it is often too late.

Keeping up with the Techies

Calls are echoing around Westminster for Parliament to step in. Jeremy Hunt, the culture secretary, has said that “technology and Twitter is making a mockery of the privacy laws…we need to get into a situation where regulation and legislation is up to speed with changes in technology”.

The law can never be anything more than reactive to technological change. And, even where it reacts quickly, lawmakers are left exasperated as the battlefield once again shifts.

Globalisation

Technology operates on a universal level; borders are crumbling, jurisdictions are becoming blurred. National laws are ineffective against the reach of the internet and in any event fail to carry the enforcement clout necessary to deter or even intimidate the corporate behemoths. Privacy laws and technology regulations won’t stand a chance unless they too find a way to operate on a global scale.