When is information not information?

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When it’s under an injunction. Or maybe not, as this week’s superinjunction scandal illustrates. Information is only information when it’s able to inform, which a gagging order should prevent. But in the case of CTB’s superinjunction, it hasn’t. Word of mouth fought the law, and the law didn’t win…

As an information professional, I’m interested in information, and how it’s created, communicated and used. So I’ve been following the recent news stories surrounding the court order the media has termed the ‘superinjunction’ with some interest. A superinjunction is a powerful gagging order which stops the media from reporting the very existence of an injunction, or revealing any details about the information it concerns. Roy Greenslade of the London Evening Standard points out, however, that this original meaning of ‘superinjunction’ is gradually changing to encompass ‘any gagging order that has the effect of making the plaintiff anonymous’.

At its essence, then, the superinjunction is the censorship of information getting out into the public domain. But the kind of information these injunctions protect (which at the moment, seem to generally centre around celebrities and extra-marital affairs) wasn’t protected before. Previously, there was little protection for misbehaving celebrities, who were subject to any number of kiss-and-tell stories in the tabloids.

The number of cases brought before the courts has reportedly seen a sharp rise in the last two years. The reason for this is unclear; some reports link it to the revelation of the Trafigura superinjunction – in October 2009, the injunction banning journalists to report Trafigura’s toxic waste dumping was lifted after it was mentioned in parliamentary debate. Others say that anonymity orders arose out of family law. What is clear is that the Human Rights Act, passed by Parliament in 1998, demands that judges balance each individual’s right to privacy and to freedom of speech. In a reportedly increasing number of cases in the past few years, celebrities’ right to privacy has often been deemed more important (although this argument has not always won the judges over, as the lifting of John Terry’s injunction restricting the communication of his relationship with a team-mates’ girlfriend in January 2011 made evident).

It’s interesting to see how these new kinds of injunctions are changing the flow of information. Where once upon a time, the law might not have had a role to play between the information being created and the dispersal of that information to the general public, the rise of the superinjunction means that those in positions of influence are able to halt this process by obtaining an anonymity order in court. But to quote another law (Newton’s third) – for every action, there is an equal and opposite re-action – it seems that freedom of speech is fighting back.

Let’s take a look at how information was communicated in the case of CTB v News Group Newspapers:

  • The information is created (in this example, the Premier League footballer and Imogen Thomas’ relationship)
  • Participants in the creation of the information have access to it
  • Participants choose to share the information with personal confidantes
  • First participant sees value in making this information public (story about Thomas’ relationship with an unnamed professional footballer appears in The Sun on 14 April)
  • Second participant disagrees, and takes steps to block the information going into the public domain (footballer starts court proceedings to obtain an injunction)
  • Interim injunction is granted, which means information is blocked from going out to the public
  • Twitter user breaks injunction by revealing the information in a Tweet
  • Information is retweeted by thousands of Twitter users
  • A Scottish newspaper, following legal advice that the injunction would not be enforcable in Scotland, publishes a barely veiled version of the information (Sunday Herald publishes a picture of the footballer involved on the front cover of the 22 May edition, with the footballer’s eyes blacked out and emblazoned with the word ‘CENSORED’)
  • Calls for the courts to lift the ban on publishing the information are refused (Injunction is upheld on 23 May by the Queen’s Bench Division)
  • MP reveals information in Parliament (Liberal Democrat MP John Hemming names the footballer under parliamentary privelege on 23 May)
  • Information is in the public domain and is reported openly by English media

A complicated path, but the information got out there. One person’s right to privacy, when it is in direct conflict with the freedom of speech of thousands, doesn’t always hold up. Even with all our modern technology, what goes around comes around, and information is passed from person to person through word of mouth, as it did before ‘the media’ came into existence.

But questions still remain; are parliamentarians abusing their position in revealing restricted information which relates to the privacy of another? Does one person’s privacy outweight the privacy of thousands of Twitter users, whose private information may now be turned over to the courts?

And at this point in time, the injunction is still in place. But if everyone knows the information I’m writing about, doesn’t that subvert the whole point of CTB’s superinjunction?


Written by missrachelsmith

May 26, 2011 at 13:16

Posted in Uncategorized

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