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).