Commentary: Freedom of speech and the Internet – Twitter & the UK

Freedom of speech, more specifically the ability that denies the government the right to keep certain things secret, is sacrosanct to a free democracy. The Internet has given the people new tools by which to limit the government’s ability to keep secrets meant for public consumption. And this power has many governments looking for ways to limit the Internet’s ability to allow people freedom to challenge their authority.

There is a place and a time that governments should be allowed to keep certain secrets for the collective good of the society that they represent. The Osama Bin Laden operation to bring him to American justice is an example of where government properly limits information to allow for the operation’s successful completion. Had the US government shared the, then upcoming operation, with the people it would have resulted in the operation’s failure to bring Osama to justice. This is an example of a properly applied instance of the limiting of information by the government. But for each power allowed to the government, the people should consistently challenge the status quo in order to rein in the power wielded by government.

Recently, in the United Kingdom, the power for government to determine what is for public consumption and what is not has been taken to the Internet resulting in a battle being waged online creating jurisdictional battle lines for anyone interested and supportive of government limitations.

Under United Kingdom law, an individual may petition the UK courts to issue a super injunction. A super injunction, under UK law, is a form of court injunction that prohibits anyone from reporting, or talking about certain facts or individuals in public or through the media. Even the existence of the super-injunction is not allowed to be discussed publically. Although designed to protect victims of crimes such as offenses against children, the super injunctions started to be used by celebrities or other entities to protect their privacy from the public’s prying eyes.

The use of super-injunctions to protect the privacy of an entity first became known in October 2009, when The Guardian newspaper revealed that it was prohibited from discussing the Trafigura affair for a limited time because of a gag order. Trafigura was involved in an embarrassing debacle involving waste dumping in Côte d’Ivoire (Ivory Coast).

The latest controversy started on May 8, when a Twitter user posted the name of soccer player Ryan Giggs as someone who had obtained a super-injunction to protect him from publicity in an affair he is alleged to have had with Imogen Thomas. Giggs sought prosecution of Twitter but eventually dropped the case when his actions actually increased the publicity surrounding him as other Twitter users rose to the defense of the original poster by posting his name over and over again.

On May 23, using “parliamentary privilege”, basically a protection against prosecution for politicians, John Hemming named the soccer player once again. Using this tactic, Fred Goodwin, a banker was also named as holding a super-injunction. Although the issue of privacy and super injunctions is raging within England and should eventually be settled there, another issue that should be discussed is how this impacts the Internet and judicial interests.

Super-injunctions are a UK injunction enforced by British courts over those it has authority over. Twitter is a United States corporate entity. Putting aside the question, for a moment, of the appropriateness of a super-injunction to protect celebrities from public scrutiny the issue that must be addressed is whether Twitter is subject to the super-injunction, more importantly, are they required to divulge the name of the user who broke the name of Giggs? Laws are created for a specific jurisdiction to maintain some semblance of social stability. Some laws, such as murder are normally universal. But as jurisdictional instruments, laws have two sides to them, the implementer, in this case the UK government and the subjects to whom it applies to, in this case British subjects. Although this is a rather simplistic explanation it applies to most instances.

As Twitter is neither a British subject nor, to my knowledge, it has accepted British jurisdiction by establishing a presence in England, the question then becomes are they compelled to release the user’s identity to a British court?

Although, at first look, the answer seems no, the issue is a little more complicated than that. Should a British court decide to make an example of Twitter it could conceivably issue orders detrimental to Twitter. For one, it could issue injunctions, after appropriate British oversight, blocking Twitter access in Britain. Notwithstanding the technical implications of this, it could affect Twitter’s access in Britain and any British territory.

But even more importantly, any Twitter executive, or employee transiting or vacationing in the UK could come under British jurisdiction and be subject to detention and punitive sanctions against them. So far, Britain seems to have shown restraint when dealing with Twitter, and in fact, British subjects themselves seems to be rebelling against this limitation to free speech.

On the other hand, this latest example of social activism via the Internet opens up interesting legal jurisdictional dilemma that empowered people may have to eventually face head on. The vehicles, Twitter and Facebook and the servers on where blogs reside, are ultimately owned and controlled by public corporate entities not interested in limiting market share by antagonizing governments. That, is where the Achilles’ heal to this new found activism outlet resides.

As with anything, it can be abused, but the power of the state should always be challenged in order to keep the state from overreaching its authority over the populace. Activism should be encouraged but the sad reality is that money ultimately controls even the Internet. Hopefully, on this, I turn out to be wrong but experience has shown me that governments love the façade of free speech, up until people actually avail themselves of it.

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