I’ve been following with great interest (and a bit of amusement) the media saga taking place in the UK at the moment involving the naming of a footballer who allegedly had an extra-marital affair with a model. Perhaps some background is warranted to introduce this discussion. Imogen Thomas, a British reality TV personality, entered into a kiss-and-tell agreement with The Sun to disclose her involvement with a famous footballer. The player´s lawyers filed and obtained a super-injunction to stop the tabloid newspaper publishing the story, and also were forbidden to talk about the existence of the injunction. Someone created a Twitter account naming the parties in this and other super-injunctions, and the proverbial post-digestive refuse hit the rotational airing device. A judge slapped down The Sun, Twitter was named in a suit from the footballer, and all sorts of legal happening have taken place. For more detail about what has happend, the Guardian has a very comprehensive page here (wink wink Charles), while Love and Garbage, panGloss, David Allen Green and the always entertaining Charon QC have weighed in on the subject.
BREAKING NEWS: An MP has named the footballer in Parliament, so it seems like the feline is out of the bag, and the British media is falling over itself to report that one Mr Ryan Giggs is the famous footballer.
You will find more information in those pages, more detail than I am willing to go into at this moment. Let it suffice to say that this is a gripping legal tale of jurisdiction, super-injunctions, privacy, freedom of speech, and media interests. However, I would like to step back a little and discuss some of the wider issues from this event. This is a recurring theme in any discussion about the interaction between privacy and the Internet that I have read about in the last decade. The question is whether the Internet has made privacy a thing of the past, and the regulatory question tearing apart lawyers in the UK and elsewhere is whether there is anything that the law can do to protect an individual’s privacy.
It is a tired and obvious remark that the Internet is a global medium difficult to police, but this makes it no less true. What the example of the super-injunctions demonstrate is that in this inter-connected medium, protecting certain values like privacy has become almost impossible. Existing privacy rules (including defamation laws) were created for a time when policing communications was much easier, as information was served by a few identifiable intermediaries. The possibility of widespread slander depended on access to distribution channels that went beyond what most people would were capable of. Fast forward to the Internet age, and privacy has become more difficult to attain. It took a quick Twitter account for someone with access to information to publish it online, and a quick Twitter search would allow you to know the identities and of those involved.
I have to admit that I am conflicted about this event. I do not believe that the public has a “right to know”, unless it is anything in the true public sphere (e.g. government, politics, environment, safety, education). Openness is good, and freedom of expression is an important human right, but it should never be without limits. People should have a reasonable expectation of privacy, and wherever there is a conflict between freedom of speech and privacy, then courts should determine where the balance lies.
The issue of course is that online the lines have blurred, and in the age of social media and Wikileaks, information is freely available to anyone with a search engine. Only wealthy individuals can have access to the courts, but even with all of their resources they cannot stop the flow of data once it’s unleashed. As Ryan Giggs is learning today, the Internet interprets censorship as damage, and reroutes to compensate. My own studies into networks explain how it would be almost impossible to stop information flowing in a distributed network such as the Internet.
What to do? I’m afraid that this is a bad week for privacy advocates anyway. If the Internet is determined to share something about you, then there is little you can do to stop it. This could very well be the final breath of celebrity privacy (if there ever was such a thing). What I am afraid of is that it may also be the death of privacy as we know it. As a rather public person, I have usually thought that the best way to protect my own privacy is to be open. If you generate enough noise, then nobody will care eventually. But privacy is much more than saucy details about a person’s life. Privacy is about choosing what the world should know about you, whether it is about your shoe fetish, or if you don’t want the world to know that you liked The Phantom Menace. There is no such thing as “if you have nothing to fear you have nothing to hide”. Privacy is about information in its context.
So no pithy and optimist one-liner for me today. I feel like we have all lost. I don’t care if Ryan Giggs scored more than a winning goal for Manchester United. I care that he might have scored a goal against all of us.