Super-injunctions: Could the freedom of speech lie in Twitter?

Summary:Super-injunctions prevent not only free speech and actions, but even the fact that an injunction has been granted. Twitter, however, may be the only lifeline to freedom of speech.

Super-injunctions are causing a media controversy this side of the pond.

With courts handing out gagging orders, preventing people from saying something but also preventing the injunction from even being mentioned, many are questioning how free the press is, or whether the days of freedom of speech and expression is all but over.

Yet over the weekend, users of Twitter took to the site to, granted without foundation, 'unmask' the identities of those with super-injunctions in a bid to circumvent the press and speech suppression laws.

Often celebrities and only those who can afford the legal challenges, imposing restrictions on journalists or broadcasters to protect privacy or reputations, use super-injunctions to prevent something embarrassing from reaching the newspapers.

Campaigner Jemima Khan, known for her work during the Wikileaks affair, recently denied getting a super-injunction -- thus proving that she could not have done, otherwise would have been in breach of it -- after claims emerged that she was having an affair with Top Gear presenter Jeremy Clarkson.

A super-injunction handed down by a court however, prevents someone -- often the press -- from doing something and saying something, and are not allowed to even say that an injunction is preventing them from saying something. They are, however, allowed to discuss this with their member of parliament who can speak about it in the House through the legal indemnification of parliamentary privilege. This is how many of the super-injunctions have been circumented.

Believe it or not, a hyper-injunction is the same as the super-injunction, but specifically prevents one from speaking to "members of parliament, journalists and lawyers". This is the highest level of gagging order known in the United Kingdom, besides death.

But because the courts and the government are two separate entities, increasing pressure is mounting on politicians to prevent an infringement to freedom of expression, speech and press. In the UK, there are privacy laws to prevent harmful disclosure of information, but also contradictory laws to allow the freedom of speech.

One backbench member of parliament, Zac Goldsmith, along with others, wants a privacy bill, to differentiate between what is in the public interest, and "prurient interest to some of the public". Privacy and public interest is subjective, after all. This happened in the case of a blogger who defamed model Liskula Cohen, which led to the suing of Google for revealing the bloggers account.

Though the tweets over the weekend were proved to be false and inaccurate, tweets alone can be used to illegally break injunctions, through means of anonymity and false accounts. Facebook doesn't allow these means, as every person is tied to a name, and other blogging sites are often traceable.

But when something hits Twitter which is controversial or not meant to be said, one tweet can in effect cause a downfall of a person, a company or even a law -- hitting the retweet button can cause a chain reaction spreading like wildfires, unable to be stopped.

It isn't the first time that Twitter has "gone into meltdown" over super-injunctions. Ian Hislop, journalist and editor of the Private Eye magazine, also is a team captain on BBC television quiz show Have I Got News For You. His story explained:

Lord Falconer, former justice secretary, said that tweets make it "very difficult" to ensure that injunctions are adhered to. As super-injunctions are not allowed to be spoken of, it is not clear how one is supposed to know whether something falls under one, leading to further confusion.

The Catch 22 situation is where, as Torin Douglas with the BBC describes, is that media outlets often need to be told something so they do not unwittingly publish it. This cannot happen with Twitter, however, as the site does not control members tweets and only removes tweets which are criminally unlawful.

Twitter users who do break injunctions, however, could face a contempt of court charge, if they are identified. But the efforts and lengths the courts will go to are often only spurred on by public interest -- and often in the case of super-injunctions, the focus is on the content rather than justice seen to the original tweeter -- or if

But 'leaky' society, ominous as it sounds, has prevailed in light of the recent Wikileaks diplomatic cables and Guantanamo files were released, starting a similar movement with OpenLeaks and UniLeaks, a site dedicated to blowing the whistle on higher education institutions and practices.

Super-injunctions may not be safe for now. Where there is a will, there is a way, and often that way is through social media and blowing the whistle. Perhaps society has more morals than we first thought.

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Topics: Social Enterprise

About

Zack Whittaker writes for ZDNet, CNET, and CBS News. He is based in New York City.

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