Twitter's 'landmark' court ruling: Why British free speech is over

Summary:Editorial: The conflict between privacy and freedom of speech continues, one will always win: privacy, leaving a trail of gagging court orders behind it.

Editorial: Tomorrow is my three year anniversary with ZDNet; a pre-recorded podcast in the morning will be light-hearted but in reality, my mood is nothing short of sombre.

My home, the United Kingdom, no longer has free speech. Questionably, without an equivalent of the First Amendment, I am not sure we ever did.

As the United Kingdom struggles to deal with the conflict between freedom of speech and the laws on privacy, privacy will innately win. One is more potent than the other, and as privacy is seemingly only a mechanism for the wealthy to invoke, the rest of us have to face the fact that freedom of speech comes second to the injunction-ridden culture we have found ourselves in.

A local council in England has taken Twitter to court in the United States in a bid to reveal the name of a tweeter, who has been accused of making libellous statements.

The court forced Twitter into handing over the names of users who had not only been directly implicated -- one of the council's own councillors, but also the names of many others who have contacted him using the social networking site.

Twitter had however, as previously stated by European boss Tony Wang, informed the user in question that court action was to be taken against him.

But as the councillor in the centre of the furore chose not to present himself in court, Twitter had no choice but to hand over the data.

Only last week, it was discussed that 'CTB', now known as Ryan Giggs as the soccer player who took out a super-injunction to prevent an affair from reaching the press, would have had to head to a Californian court to discover the names of Twitter users who broke the injunction.

This is not a 'landmark' ruling. Governments through the legal system force organisations into handing over dozens all the way through to thousands of individual's information each year.

Many have argued against the Telegraph who reported this as a landmark ruling, but declined to mention that the councillor had not chosen to fight the legal action.

But what is not mentioned, regardless of how in-depth news coverage has gone into this, is the pressure it adds to the British legal system and the reflexive privacy versus privacy laws, which for now there is little but court-subjectivity to reign over whether one can be protected or not.

There is something tainted about a council of local government applying to a courthouse in another legal jurisdiction. Not only is it subversive and unorthodox in its very nature, it puts both legal systems in disrepute for the sender to deem their own jurisdiction as ineffective, and the other as legislatively maniacal.

For me, it feels as though this local council has wedged two fingers up at the British legal system, to fight on the home territory for where a company is based: the United States, California in particular.

However, Twitter's move to London would make the legal tussles far easier to deal with, with British High Court judgements having to be complied with. Whether the jurisdiction of Twitter's head office in the United States will have any inference on how effective these judgements are, it is yet to be seen.

Super-injunctions themselves are one of the most powerful acts of legislation in the United Kingdom; not determined by Parliament as it should, but by the courts, which should only have the power to amend and sanction. But these injunctions are being undermined by popular technological culture.

I find it oddly ironic that I should dedicate a year of my life constructing the argument that European data is susceptible to U.S. authorities, as a result of the wide-ranging subjectivity of the Patriot Act. Yet, though it infringes freedoms and given rights of the American people, the First Amendment holds true and cannot be manipulated or deviated from.

The First Amendment, as you will rightly know, is constitutionally bound. If a court prevents one from speaking about something, one can raise this powerful legislation and negate the courts ruling. It is how gagging orders have been overcome in long-running battles

If one is to break an injunction, a super-injunction or any court order, then one must be prepared to deal with the legal ramifications. There is no doubting this very basic premise of the legal system; often regardless of where one is in the world.

But, and here is the kicker, is that the very vast majority of those subject to these super-injunctions are unaware they not only apply to them as citizens of that jurisdiction, but are unaware of the repercussions.

Ignorance is not a defence; quite rightly so. But that this 'landmark' ruling which -- frankly is nothing short of misinformation supplying to the wider media -- does reflect and highlight the issues we have with privacy today in the online services we use, and sometimes abuse.

Yet in the British legal system, nearly 70 million people are being told not to say something, when the details of which are not disclosed for the population not to know what one is not to say, is confounding idiocy.

The focus is on the services -- Facebook and Twitter; most notably the latter in this instance. It shouldn't.

It should be focused on the fact that an entire population is gagged from saying the unsayable: like whispering 'Voldemort' in a Harry Potter filming.

Whether Britain should codify the unwritten constitution and align themselves with a legal framework like our American cousins, perhaps not. But it is about time where a clear, objective distinction was made between 'private' and 'public -- in the modern age of technology, social media and instant communications where an injunction can be broken by the collective masses in seconds.

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Topics: Legal, Social Enterprise

About

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

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