6 critical issues: Why the super injunction story represents a major social turning point


Much ink and many pixels had already been shed on Britain’s super injunction laws before the last week, but the Ryan Giggs case has pushed this into the stratosphere.

In case you’ve been hiding in a closet, Manchester United star Ryan Giggs was awarded a “super injunction” from British courts, forbidding the press to report that he was alleged to have had an affair with Big Brother contestant Imogen Thomas, or even that they had been forbidden to report on it. Some 75,000 tweets and 1 use of parliamentary privilege later, everyone knows anyway.

This is one of those seemingly small incidents on which major social turning points hinge. So many fundamental issues of society, media, and our future are tied into this that it is difficult to disentangle. Here are a few compact thoughts and critical issues on what is at the heart of this extraordinary situation.

– The current super injunction law was created to respond to excesses of the press
The British tabloids have a tradition as world-leaders in muck-racking and invasion of privacy. Their excesses led to what were probably at the time reasonable laws to limit negative social impact from their activities. However the media landscape of today is barely recognizable from when these laws were enacted in 1990.

– What is “legitimate” public interest?
The purpose of the original laws was to protect people’s privacy, except in cases of ‘public interest’. The judge at the centre of this case has said that there is no “legitimate” public interest in a footballer’s pecadillos. There is absolutely no question that there is public interest. I personally believe that it is legitimate.

That is far clearer in the case of former Royal Bank of Scotland CEO Sir Fred Goodwin, who used a super injunction to hide his affair with a senior colleague while one of the world’s largest banks slid towards bankruptcy. This is clearly of public interest.

However just because you think people shouldn’t be interested in something doesn’t mean there isn’t genuine public interest. What celebrities do is an intrinsic aspect of society.

– Is the ‘right to privacy’ meaningful in a world of open information?
This situation has shown that it is not feasible to enforce legislation against information of public interest becoming available.

There are clearly situations in which privacy is necessary, including protecting people’s safety, enabling fair trials, and ensuring national security. However these are dramatically different situations from where just sensibilities and personal reputations are at stake.

In particular, the injunctions granted to date have invariably been awarded to celebrities and the wealthy. While their reputation is important, the nature of their highly visible position makes their reputations inherently vulnerable. Their reputation is probably not something that needs to be – or can be – effectively protected by the legal system.

Disgraced former UK cabinet minister Jonathan Aitken has said he has learned confession is a far better policy rather than trying to hide misdoings.

– How do we protect against scurrilous rumours?
Twitter is being asked for the identities of people who broke the super-injunction. However these people, while they broke the law, did not give (it would appear) incorrect information. I believe Twitter is right to be at least highly reluctant to divulge those names.

Libel and slander laws will still hold. So if people make false accusations, then social media platforms would be justified in divulging identities for legal purposes.

The reality is that from now on there will always be ways to make untraceable comments. As such, we are shifting to a world of the open interplay of ideas. The best way to counter incorrect information is to give and support correct information. Certainly people’s reputation can be damaged by rumors, but as more information flows the truth is more likely than ever to win out in the space of opinions.

Which takes us to the perennial themes of reputation systems. While these will never be perfect or even close, as years go by people’s reputation will become more visible and more accurate.

– What happens when national legislations conflict in a world of no boundaries?
This is just one more case when national legislations differ on issues that span boundaries, as is the case whenever information flows.

There is no foreseeable resolution of this. National laws on the internet, privacy, libel, copyright, and many other related issues will probably never converge. This means that every conflict of legislation is an individual case.

It is possible that more companies will choose to operate in a single country that has friendly legislation. However larger media companies, which Twitter and Facebook certainly are today, need a local presence in all major countries and so will have to deal with these conflicts as part of the cost of doing business. The trick will be to contain legal risks to what they can afford to deal with.

– British law does not reflect the realities of the world of today
The super injunction laws are clearly not appropriate and realistic in our world of distributed media. No less than British Prime Minister David Cameron agrees they need review.

There are some socially useful aspects to these laws, so they probably shouldn’t be simply scrapped. But certainly they should not be used to protect the reputations of celebrities and the wealthy. This is not something that can be legislated. Public reputation needs to be sorted out in as open a market as possible of information and opinion.

This story has a long way to go. Laws must change to be relevant to the world around them. Some people may not like a world of unfettered information flows, but that is an inexorable trend that cannot and must not be reversed. We must learn how best to do with that reality.