The right to legal priviledge versus the right to sensationalise

Lets be clear about something.  This whole institutional dust-up is not about privacy and human rights.  It is about the tabloid media’s presumed right to sensationalise (and the worrying ability of social media to deflate its ability to titillate) and the legal establishment’s presumed right to exist.  Basically it is all about the erosion of institutionalised privileges.

Looking first at the media.  What is interesting about the whole affair is that the suspension of traditional media’s ability to report gives us the opportunity to analyse how social media in isolation is handling the story (i.e. the story about the footballer not the story about the institutional fight) and compare this with the way the mainstream media traditionally handles such events.  Within social media we have a simple tweet which states that x footballer had an affair with x semi-celebrity.  This prompts some discussion and debate within the relatively small digital communities that are interested in the individuals concerned.  This discussion goes along the lines of “So-and-so has had an affair.  All these footballers are the same.  Shame though – this bloke seemed to be one of the exceptions, but at least he has patched things up with his missus.  Ah well – lets talk about more important things like the big game coming up next weekend.” There are also some quite good jokes that are made – British pub and terrace humour at its best.

The way the tabloid media might choose to report this story would be to splash screaming great headlines of outrage across the front page, send legions of paparazzi to stalk the individuals concerned and their families, to tease-out (and frequently invent) as many lurid details as possible and do everything possible to convince us that this event is the single most important piece “of News the World” must be interested in.  What a difference – a difference which exposes the fact that the media don’t like the right to privacy because it impinges upon their right to sensationalise and they don’t like social media because it similarly deflates their ability to titillate.

The legal establishment is all in a flutter because it is slowly starting to realise that social media is creating a space within which it is powerless.  In fact, worse than powerless, totally irrelevant.  You simply cannot apply an institutionalised legal framework to the specifics of information within this space because the core assumptions you need for this model to work just don’t exist (and never will).  Social media exists outside of the law, not because it wishes to break the law, but because there is no law yet in this space.  Try as you might to drag bits of current legal process into it and all that happens is that you end up looking silly.  And when we do come around to creating some framework of control that works, we may well find that what works is not actually law as we currently know it (the thing that has lawyers, silly wigs and fees and all that stuff), but something based around the creation of social permission that it all together more, well, permissive.  Basically this will mean working out the codes of behaviour that are required to allow society as a whole, rather than editors or judges, to work out what importance to attach to information.  Critically this is not about determining what is right or wrong – something  that is fit for publication or not fit for publication.  Rather it will be based around ensuring the ability to generate a collective assessment of interest or relevance – something which social media actually already does rather well, quite unencumbered from formal regulation (as the general lack of interest in said footballer’s private life, as represented within social media, neatly demonstrates).

18 comments

  1. Graeme Codrington

    Richard,

    It was funny to watch the BBC News today talking about how the legal establishment is battling to keep up with the “speed at which the Internet is moving”. The Internet of which they speak is nearly 20 years old. Twitter itself is five years old.

    The only thing “new” about the Internet is that people from the old establishment have realised (belated) that it is actually a factor. It’s not just about teenagers telling each other what they had for breakfast.

    But almost everyone I know already knew that. So who these out of touch people? Politicians, newspapers and big media! Hhhmmm, that explains it then.

    • richardstacy

      Graeme,

      There is actually something “new” about the internet – which is that teenagers can just as easily use it to tell each other what they had for breakfast as they can to expose the incompetence of the established legal framework.

      The tools have been there for a while, but it is the behaviours which are developing – and as good old Clay Shirky says “revolutions don’t occur when people adopt new tools, they occur when people adopt new behaviours”. He also says that technologies only become socially interesting when they become technically boring. I like Clay Shirky!

  2. Nicholas Dean

    Dear Mr Stacey,
    You are profoundly wrong about the “legal establishment” being “all in a flutter”. In the first place there really isn’t any such thing as a “legal establishment”. Parliament created the Human Rights Act and with it a limited “right” to privacy. Individuals are entitled to utilise legal remedies to enforce the law or to maintain their individual rights where these rights are at risk of being breached. Injunctions are available in many situations – not just to preserve the privacy of the rich and (more or less) famous. Certainly social media has the capacity to undermine the efficacy of legal remedies and that fact will mean that the law will need to adapt. Ultimately the law is the servant of the society within which it functions and lawyers and judges are the first to recognise that. The idea that lawyers and judges are “all in a flutter” about the inability of people to resist gossiping about the sex-life of a footballler and a model is preposterous. But consider this: say a newspaper was about to disclose that someone was a paedophile when in truth that person was a paediatrician. Would it be wrong for the paediatrician to seek an injunction? Would it be right for people then to tweet the name of the paediatrician? You may say that such a situation could never arise. You’d be wrong.
    And it is “privilege” – not “priviledge”.

    • richardstacy

      Nicholas.

      Not quite sure the point you are making. I am not denying that there should be a right to privacy – merely questioning the efficacy of the law that we have to support that right as things currently stand.

      The main point I am making is that this is really a fight between two institutions who see their respective positions being threatened. To take your example of the paediatrician – lawyers and judges need to recognise that newspapers and Twitter are completely different things. You can use injunctions to control the actions of newspapers – but it is pointless using these to control what people say in Twitter. In reality – Twitter is a medium it is very easy to correct or address without the use of injunctions – you simply reply to the offending tweeter and point out the difference between a paedophile and a paediatrician. But of course you don’t need a lawyer to do that.

      If lawyers and judges are not “in a flutter” over this – I would invite you to suggest another description that characterises the situation.

      Sorry about priviledge in the title – I like to think it is the privilege of the un-edited to make spelling errors (or is that a right). And – its Stacy not Stacey.

      • Nicholas Dean

        Touche re Stacy not Stacey.
        Your phrase “in a flutter” suggests a degree of emotional distress amongst lawyers and judges at some perceived violation of their “institution”. I do not know any lawyers or judges – and I know very many – who remotely think like that.Injunctions have not just been invented. Thousands are granted every year in all sorts of situations. An injunction is a very useful legal remedy or interim remedy and the current furore regarding a limited number of a particular type of injunction will have no impact on the continued existence of the remedy.
        To the extent that any concern has been expressed about the current situation by judges it has largely been regarding the use of Parliamentary privilege to reveal some of the detail of some injunctions. The use of Parliamentary privilege in this manner is particularly ironic. Parliament enacted the Human Rights Act in 1998 thus creating the very law that individuals have used to seek to protect their privacy. Parliamentarians – usually for self-seeking reasons of their own – revealing the detail of such injunctions cannot know the reasons the injunctions were granted. The fact is that there is no public interest in everyone being told that Ryan Giggs has been shagging Imogen Thomas although of course the public are very interested in that apparent fact. Your comments also perpetuate silly myths about lawyers and judges. There is probably greater awareness and use of social networking amongst lawyers and judges than most professionals and a very clear understanding of the challenges to the efficacy of the law that social networking can pose. I do not think there is the slightest wish amongst the judiciary to “control” either newspapers or Twitter. It isn’t a question of “control” but rather a question of compliance with and respect for the law. Thousands of Twitter users – usually – indeed almost universally – from positions of utter ignorance – have decided that it doesn’t suit them to comply with a properly obtained entirely lawful injunction. Ryan Giggs might not deserve the protection of the injunction the law entitled him to, but in deciding that he didn’t deserve that protection thousands of people have put themselves above the law. Whilst no-one will shed a tear for Ryan Giggs the harm that can be done by the gossip spread on Twitter cannot simply be put back in the bottle by a reasoned correction. Jemima Khan issued a reasoned correction but she’ll still always be linked now, rightly or wrongly, with Jeremy Clarkson. Ultimately – however an injunction is deliberately breached, whether in a newspaper or via Twitter – the law will take steps to ensure that the rule of law is enforced. It is unlikely that anyone will be prosecuted in relation to the Ryan Giggs affair – but those who Tweet are not above the law.

  3. richardstacy

    Nicholas,

    I don’t think those who tweet consider themselves above the law – they are simply in a place where the law as it stands has no relevance (much to the annoyance of what I have termed the legal establishment as evidenced by the exhortations of Lord Faulkener yesterday that the public behave themselves). What has the public been doing wrong? They have simply been talking about Ryan Giggs using social networks in the same way as they would otherwise have been talking about him in the pub or on the terraces.

    Injunctions work with institutionalsied media – they do not work with social media. How, for example, is one to serve an injunction on users of social media (which number millions in this country). Perhaps one should take out press ads instructing everyone that they must not name Ryan Giggs as the footballer who had an alleged affair. It is no point in stating the problem as being compliance with and respect for the law when the law is – to coin a phrase – an ass.

    We need to go back to the basic priciples. The purpose of the injunction was not so much to prevent knowledge of the affair getting out, it was to protect the individuals concerned from the intrusive behaviour of the tabloid media. The public themselves, as judged by how the story of the affair, has actually played-out within social networks, have shown themselves to be largely disinterested in the story – much to the distress of the tabloid press. Rather than trying to dictate to the public what they must do and think, either as a lawyer, judge or politician or as a newspaper editor, perhaps the above should should pay a little bit more attention to what the public is actually doing and recognise that it is not they or “Twitter” that is seeking to invade the privacy of Ryan Giggs – it is the tabloid press.

    Until there is a recognition that we can’t simply drag pieces of legislation designed to control institutions into a space which concerns the behaviour of individuals the legal establishment, if not “in a flutter” is certainly in a state of denial.

  4. Pingback: Facts, lies and probability « Richard Stacy @ Stacy Consulting
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