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

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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  • Is freedom of speech dead?

    Are the British courts restricting freedom of speech? Should the United Kingdom adopt a written, codified 'First Amendment' type piece of legislation?
    • Freedom of speech is dead

      if one cannot tell a truth without being jailed for it.

      I understand that certain sensitive data (miltary secrets, protected witnesses names, and other such information) should not be allowed to made public with out reprocussions, but I also agree that one should not not be allowed to anonymously destroy the lives of others with lies and untruths.

      Yet to be able to ask for (and one day possibly be granted) a super-injunction to stop others from telling a truth about an affair outside a marrige, or that an influential person was arrested for a DUI, or to stop one from voicing opposition to a building or some such structure in one's neighborhood.

      Freedom of speech should be a constitutional right, one that no one person or government can be allowed to restrict.

      Tim Cook
      • RE: Twitter's 'landmark' court ruling: Why British free speech is over

        @zwhittaker Privacy in a country full of spy cameras on the streets? HA HA HA HA HA HA
      • What this has to do with freedom of speech?

        @zwhittaker: <b>neither first amendment in USA, nor any similar "free speech" measures ever promised anonymous libel/slander freedoms</b>.

        The freedom of speech was always and has to be always named when the sayer makes offensive statements against anyone else.

        So if someone goes to accuse another, it is certainly should not be anonymous, and it is certainly should be possible to contest in court, where the claim is proven or not.

        So you basically twisted the whole thing that happened with this Twitter-case, similar to what you have done with Gizmodo's Jason Chen buying stolen property:
    • RE: Twitter's 'landmark' court ruling: Why British free speech is over

      Zack, I take the opposing view. Australia, like Britain, does not have a first amendment; or any other amendment for that matter . . . and I believe that we are all the better for it! There is no such thing as "free" speech, as many victims of free speech will be quite ready to tell you. No-one should have the right to state lies and misinformation and the like without control. As much I favour the presumption of speech, I believe that it should be tempered by the rights of others to privacy and to reasonable protection from vexatious lies and misinformation.
      • You misunderstand: No one has the right to state lies

        You have to understand that free speech doesn't give anyone here in the US the power to state lies. If it did then nobody would ever be sued for libel, which they are.

        Privacy does not trump the freedom of speech as long as what I say is true, and was obtained legaly. If i state lies and misinformation, then my butt can be hauled to court. (A couple of famous celebrities in Britton did just that.)

        The right to free speech allows me to say what I want to say without fear of being thrown into jail by my government or neighbor. The right to be sued for libel if what I said was false is a right my neighbor has.
        John Zern
      • RE: Twitter's 'landmark' court ruling: Why British free speech is over

        @John Zern<br><br>I do understand the situation but thankyou for the clarification.<br><br>"The right to be sued for libel if what I said was false is a right my neighbor has."<br><br>That is the problem. It seems to effectively allow anyone to say anything that they want and the only solution for the victim is to sue. Isn't a better solution to stop lies etc BEFORE they are said rather than forcing a victim to take the extreme measure of finding a legal remedy post facto? That is what the laws here would seem to try to do and they are able to do so because we do not have a Bill of Rights or similar<br><br>I quite despise the notion of "free" speech, because, as I've articulated, far too often there is a victim of that supposed freedom. I much preference a concept of "responsible speech" - but that does not sell newspapers and magazines <img border="0" src="" alt="wink">

        As far as I am concerned, and as I note below, I Bill of Rights cannot exist without a concomitant Bill of Respect and Bill of Responsibilities. You'll note that another Aussie has somewhat similar thoughts. I guess it all comes back to our different ways of looking at life :-)
      • Proving that the defendant lied is not enough under US law

        @ John Zern<br><br>To win a libel suit under US law, the plaintiff must do far more than simply prove that the defendant lied -- particularly if the former is a public figure.<br><br>The view that prevails under continental European law, that defamation is a criminal rather than a private matter, seems far more sensible to me than the common law (Anglo-Saxon) view, which is the other way round. Treating defamation as a private matter leads to either very weak protection against it (as in the USA) or a financially driven system where the level of protection is driven by wealth (as in the UK).<br><br>I don't see a particular difference between maliciously destroying another person's property with theft (for example) one one hand, and maliciously destroying their reputation with lies on the other. A victim of either should be required only to report the matter to the police.
    • RE: Twitter's 'landmark' court ruling: Why British free speech is over

      Hi Zack. I've always enjoyed your column.

      I'm from Canada. As you may recall, Canada was once a British Colony. In 1867, it became a self-ruling colony. In 1982, we adopted our own constitution and became a truly separate country all together within the Commonwealth.

      The Constitution act of 1982 included a "Charter of Rights and Freedoms", the very kind of laws you are talking about. The Charter cannot be superseded except by use of the "Notwithstanding clause" (which must be renewed every 7 years and the use of which is considered political suicide) or the "Emergency Measures Act" (the replacement for the "War Measures Act").

      The problem with Britain is that, because it is so old of a country, the only thing it has resembling a constitution is the Magna Carta. All of the rights and freedoms you have are supported by legal tradition, not by codified law. Traditions can be legislated against. Even if a "Charter of Rights" was passed by your government, it could just as easily be negated by that same body. Of course, doing so would likely be political suicide but the point is that non-constitutional rights are more easily eroded than constitutional rights.

      As for your question "Are the British courts restricting freedom of speech?" the answer is both no and yes.

      Even in countries with constitutionally guaranteed rights to free speech, a person is not allowed to tell damaging lies about another person or group of persons. That's libel. In Canada, like in most of Europe and many other countries, it is considered a criminal offence. So even in a place with a First Amendment or a Charter of Rights and Freedoms, the tweeter who is accused of making libellous remarks about a council is never protected by the "Freedom of Speech". You cannot use the Freedom of Speech or the anonymity of the internet as an excuse to commit a crime. It seems you are confusing "Freedom of Speech" with the "Freedom to anonymously tell lies" and that latter freedom does not exist. So in this case, no the courts are not limiting freedom of speech.

      The example I find most troubling is the case of Ryan Giggs. It is not freedom of speech but freedom from speech that would permit him to use a super-injunction to place a gag-order on the press to prevent them from freely reporting and commenting on what are substantially facts. If anything, that super-injunction seems like an unreasonable limitation on the Freedom of Speech and the Freedom of the Press. So in this case, yes the courts are limiting freedom of speech.
  • re: W8...

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

      @rmac_z Super-injunctions are only valid on those within the United Kingdom. First Amendment overrules super-injunctions... but nice try ;)
  • Someone posting criminal lies is not an issue free speech

    Free speech is not a free pass to posting unfounded accusations without consequences. If some individual is constantly posting accusations involving illegal activities on Twitter, I don't see why an investigation is not merited.

    Free speech means freedom of expression, not freedom to say what ever lies you want to say about others.
    • RE: Twitter's 'landmark' court ruling: Why British free speech is over


      yea but was what was said a lie?
      • If the words were true, then why hide behind a twitter account?

        @KBot Also, shouldn't it also be logical to pursue the allegations .... starting with finding out who posted the info and what he/she really knew?
  • RE: Twitter's 'landmark' court ruling: Why British free speech is over

    You didn't have it before, so nothing has changed.
  • RE: Twitter's 'landmark' court ruling: Why British free speech is over

    i never realized great britain didn't have a law granting free speech. Shows how well versed I am in world events or politics. I think that something like the bill of rights we have in America should be a world law. Obviously no one can pass a world law, but what i mean is that all governments should pass one.
    • RE: Twitter's 'landmark' court ruling: Why British free speech is over

      Australia has no Bill of Rights. We have assumed rights and freedom of speech is one of them. But, with freedom comes responsibility. So maybe, with some of the irresponsible things that get thrown around anonymously on forums like Twitter, we would all be better off with a Bill of Responsibilities, rather than Rights.
      A Grain of Salt
      • RE: Twitter's 'landmark' court ruling: Why British free speech is over

        @A Grain of Salt

        Well done Grain! I have long debated that a Bill of Rights cannot properly exist in the absence of a Bill of Respect and a Bill of Responsibilities.
  • RE: Twitter's 'landmark' court ruling: Why British free speech is over

    @A Grain of Salt

    Quite true, but ptorning I think a 'bill of rights' should include the rights of both parties.

    ie, the right to be respected, and the right of having others act and talk in a responsible manner.

    A right is also a responsibility, and a liability, if you have the right to carry firearms, you can expect the price for that right that there is a much higher chance of becoming a victum of someone else exercising their right to carry.

    So you have a right to carry a gun, but you give up a safer community for that right.

    "respect and responsibilities" are much harder to define and codify.. what might be considered respectfull to one person might be a 'diss' for someone else.

    Imagine, if you have a right to immoral speech, then who gets to decide who's morals are right and who is wrong.

    I too am from Australia, and I do not mind at all that we do not have a US style bill or rights.

    having a list of things you 'can' do is not as good as not having a list at all, and having standard laws that state the things you cannot do.

    You have every right in the world, as long as those rights agree with the accepted laws. I assume the UK is the same.

    But what happens in the US ? if it is not on your Bill of Rights are you allowed to do it, do you like having a list of things you CAN do? as well as a list of things you CANNOT DO ?

    You have one list stating these are the things you are allowed to do, and then you are given another list (the laws) that state all the things you cannot do..

    therefore I believe we are MORE free than that of the US with its Bill of Rights, as we only have one list of rules and restrictions, and not also a list of things you are 'allowed' to do.

    If there is no law against it, you can do it in Australia, but law or not, you can use your 'bill of rights' to take away the rights of others.

    If fact the BoR is a further removal of freedom.
    • RE: Twitter's 'landmark' court ruling: Why British free speech is over


      "Quite true, but ptorning I think a 'bill of rights' should include the rights of both parties."
      But that is my whole point. That is what I am debating for, too. My concern with all Bills of Rights that I've read are that they are written only from the viewpoint of one party.

      You seem to be another Aussie not hypnotised by the left-wing lunacy that we need a Bill of Rights ;-)

      The first issue, and the one often not discussed, is to identify what are truly "Rights". The word is thrown around in conversation as if everything in life is a Right. Other important words, such as "Privilege" are forgotten.

      As you'll note from other posts, the second issue relates to "Respect" and Responsibilities. Rights do not exist in a vacuum!

      Putting that aside, the problem that I see is in trying to write a Bill of Rights that properly represents the rights of all parties. Bills, such as this, are usually written in very short, pointed sentences. Here are a couple of challenges for those interested. In one short sentence, write a statement that allows "free" speech on the one hand and that protects privacy on the other. You can try the same with most other concepts of Rights. You might want to try writing a statement that protects a person's right not to incriminate themself and yet which allows victims and the community a right to the truth. Good luck trying to do that and at the same time ensure that the statement written protects the ability of Royal Commissions and Special Commissions of Inquiry to direct witnesses to answer questions.

      This is a complex issue, and I realise that a Bill of Rights is an important culture and legal component of many countries. But, do we need one? No bloody way! :-)