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The Twitter storm that saved freedom of speech
But not exactly, not really...
Comment So was it Twitter what won it? Yesterday, in the wake of a flurry of Twitter and blogosphere outrage, the 'super-injunction' banning the Guardian (and, we should note, everybody else) from reporting details of a parliamentary question effectively collapsed. "A few tweets and freedom of speech is restored," the Graun itself said, while Tory blogger Iain Dale claimed: "Let there be no mistake. This would not have happened without the online engagement through various blogs and Twitter which has happened over the last 18 hours or so."
Dale is quite often sensible, but it is a good rule to be suspicious of statements that begin 'let there be no mistake.' And in this case, he is indeed mistaken.
A bit of background first. Media law firm Carter-Ruck had obtained an injunction preventing the Guardian from reporting any details of a parliamentary question about its client Trafigura, tabled by Labour MP Paul Farrelly on Monday. As the Guardian said yesterday: "The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found." An apparently increased readiness among UK judges to grant such sweeping 'super-injunctions' has caused considerable concern among British media in recent times, but this one was one of the most extreme - and ill-advised - on record.
We should note that such injunctions effectively apply to anyone publishing information relating to them in the UK. You might have some defence if you were able to show that you were entirely unaware of the injunction's existence, and had merely published the relevant information by coincidence, but if you knew about the injunction, you published anyway, and what you published was read in the UK, then you were technically in contempt of court. Whether or not those of you not domiciled in the UK and/or whose servers are not in the UK should worry depends on a number of factors. But for the moment we'll just suggest that some of you who're not worried would do well to worry a bit more.
The other factor worth noting about this particular case was that the injunction crossed a line by effectively banning reporting of parliament, and therefore challenged parliamentary privilege. MPs can be sued for what they say outside of parliament, but what they say in parliament, and reporting of what they say, is protected. Farrelly's question had been published in the Commons order papers, and therefore would have been viewed by the media and MPs as absolutely fair game - if it hadn't been for the injunction.
Media lawyers today are puzzling over what the judge could have been thinking when he granted it, and what Carter-Ruck could have been thinking when it applied for it. British MPs are a self-important lot, usually tediously so (when for example they moan about the noise and mess created by Iraq demos in Parliament Square). But when it comes to parliamentary privilege and the reporting of parliamentary proceedings, the self-importance has its uses.
Crossing swords with the blogosphere certainly generates a certain level of fallout which you may or may not be prepared for, but crossing swords with parliamentarians' free speech and freedom to be reported is a lot dumber. With or without the Twitter storm, MPs would not have let this one stand. Carter-Ruck agreed to an amendment to the terms of the injunction which would permit the reporting of the question (but still prohibits reporting of other matters related to Trafigura) shortly before a high court hearing on the matter, but parliamentary concern about secret super-injunctions has been heightened by the case.
The blogosphere has most certainly had an effect in this case, but claims that it is "a historic victory for the power of the Internet" are overblown. Note that there are in existence numerous super-injunctions whose terms and even existence must be kept secret, and very little has leaked out about them on the Internet. Some MPs - notably Paul Farrelly - are concerned, the media are concerned (but generally aren't permitted to be concerned in public), and Private Eye has done some useful campaigning on the subject. But that's about it.
Note also that if such injunctions did not continue to be useful weapons for the legal profession's reputation management section, then they would not continue to be deployed. Yes, if one of them does trigger a blogosphere 'I'm Spartacus!' outbreak and/or a Twitter storm, then everybody can pat themselves on the back afterwards about how the news got out anyway, and how it's completely impossible to tame the Internet and how counter-productive it is to try.
But we repeat, if this is such a stupid thing to do, why do they keep doing it? And why do clients keep paying them large quantities of money to do it? The point here is that in general, those concerned do not care massively about entirely suppressing information. They probably would if they could, but they know they can't, so they confine themselves to keeping a lid on it in higher profile outlets, and generally this works fine from their point of view.
In this particular case it clearly didn't, and the worldwide publicity won't have helped the reputation of Carter-Ruck, its client or indeed Carter-Ruck's reputation for effective reputation management. But lawyers will still apply for and get super-injunctions, and this will go on until such time as parliament curbs their power. Free speech is only going to be saved when it has been saved for everybody, not just for the bloggers too small to bother with. ®