The U.K. media is atwitter this weekend over a controversy about press gag-orders known as “super-injunctions” that have recently been disobeyed on Twitter. It’s an unlikely combination of celebrities, sex, social media, and press freedoms that has exploded into a scandal that led Twitter this week to break its U.K. traffic record and get sued by an anonymous VIP. It’s also another example of bewildered officials having to face the new reality that information on the internet can’t be controlled.
What’s So Super About a Super-Injunction?
A super-injunction is the strictest kind of gag order a U.K. court can issue against the press. For example, say you’re a famous football player who had an affair with a reality TV star. Now the starlet is blackmailing you and threatening to go to the tabloids. Under U.K. law, your right to privacy trumps a newspaper’s freedom to publish details about your life. So, you can go to court and get an injunction preventing the media from publishing or broadcasting about the affair.
The problem is that the press can still report the fact that they have been gagged at your request, thereby fueling public speculation that might be just as bad as the details of the affair. So, courts have issued super-injunctions, which prohibit the media not only from discussing the private matter, but from even acknowledging that an injunction exists at all. It’s an attempt to throw the entire matter into the memory hole.
Now, anyone reading about this on a tech blog in 2011 should be able to guess the next twist in the story. An anonymous member of the media who presumably had knowledge of celebrities who had taken out super-injunctions started a Twitter account and posted the details. The result is that while the press can’t even begin to talk about the scandals, social media is awash with leaks, rumors and speculation. In fact, this week saw Twitter break its U.K. traffic record as Britons logged on to the site to see the super-injunction list that wasn’t available from traditional media.
Can U.S. Social Media Be Gagged?
As I’ve written before, information wants to be free, even if it’s private personal information, and it’s unlikely a court order can prevent it. That hasn’t stopped U.K. courts from trying. Last week also saw the first injunction specifically targeting new media. In the case of a woman who wants to withdraw life support from her brain-damaged daughter, a court ordered that details of the matter not be discussed in “any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service.”
Yesterday it was revealed that Twitter was named in a lawsuit filed at the High Court in London to enforce a super-injunction. The case is listed as CTB v. Twitter, Inc., and Persons Unknown — the anonymous tweeters. According to Bloomberg, “CTB are the initials used by the court in a separate lawsuit to refer to an athlete who won an anonymity order banning the media from publishing stories about his alleged affair with a reality-television star.”
The question everyone’s now asking is, can super-injunctions really be enforced against companies based in the U.S., where the Supreme Court has roundly rejected prior restraint. The answer is yes… and no.
Legally such gag orders can be enforced. Twitter, for example, told reporters that “There are tweets that we do remove, such as illegal tweets,” though the company said they “strive not to remove tweets on the basis of their content.” A tweet that flouts a super-injunction would be illegal in the U.K., and while a U.K. court’s power doesn’t extend into U.S. territory, Twitter will likely comply if it ever wants to do business in the U.K. For its part, Facebook has a London office with over 50 employees and many business interests in the country, which means that a U.K. court has plenty of pressure points to get it to comply.
Bottom line: If a company has persons, assets, or business interests in a country, and that company isn’t willing to lose those persona, assets, or business interests, then that country’s laws can be enforced against it. This likely means that if notified of offending tweets, Twitter may be forced to take them down a lot like YouTube takes down videos that are flagged as infringing copyright. The more interesting question is whether tweets will be taken down just for U.K. visitors or for everyone.
That said, practically it’s impossible to enforce a super-injunction on social media. Supposing that Twitter doesn’t take down tweets for non-U.K. users, persons in the U.K. could easily spoof their location to get access to an uncensored feed. Even if specific tweets were completely wiped out, the information would likely spread through retweets and reposts on thousands of accounts, making it impossible for any court to control short of shutting out the service. And even if that doomsday scenario came to pass, the net is a very big place and the information could be posted just about anywhere, which means that a super-injunction can’t achieve its intended effect.
This Isn’t Going to Be the Last Time
Controlling information is possible, but only at the margin and at great cost. As information technology advances, that margin at which information can be controlled gets thinner and thinner, and the costs of doing so become greater and greater. So given the apparent futility of keeping facts secret, you’d think officials would look to find better ways of confronting the new reality. That’s unfortunately not the case.
“Why are we assuming that the world of communication, developing as rapidly as it is, can never be brought under control by other technological developments?” asked the head of the U.K.’s judiciary yesterday. “I am not giving up on the possibility that people who in effect peddle lies about others through modern technology may one day be brought under control.”
And we should not forget to look in the mirror. While the U.S. has some of the world’s most extensive free speech and press liberties, it seems every week there is a new proposal to control what information can be published online. For example:
- Earlier this month Rep. Ed Markey proposed legislation that would force online services to create an “Eraser Button” to allow minors to wipe out embarrassing facts they placed online and later come to regret. An impractical yet incredibly expensive proposition. There’s no pulling back that keg-stand photo once it’s on the net.
- Last week Sen. Patrick Leahy introduced the PROTECT IP Act, which was widely panned in the blogosphere. Among other things, it would require search engines like Google to remove from their indexes sites found by a court to be dedicated to copyright or trademark infringement.
- And let’s not forget the continuing Department of Justice investigation of WikiLeaks and the unsuccessful attempts made to suppress leaked documents from the group.
- Even Canada got in the action last month when it made clear to citizens that Tweeting or posting to Facebook about election results before all polls were closed was illegal.
While we may be sympathetic to the reasons why some want to control information, the fact is that it’s becoming increasingly difficult and costly, if not impossible, to do. But we should know by now that the answer to bad speech is not to censor, but to promote good speech. More speech is how we get truth and accountability. And it’s not just celebrity sex scandals that are being suppressed, but also illegal toxic-waste dumping by multinationals, and even horrendous accounts of ████████████ and ██████████.
Jerry Brito is a contributor to TIME. Find him on Twitter at @jerrybrito. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.