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Summary:

Just like the media industry, the legal system is being disrupted by social media and the democratization of information distribution — in the latest example, a British court has issued an injunction that bans any mention of the details of a case on Twitter or Facebook.

Social media such as Twitter and Facebook makes anyone a publisher, and that’s disrupting the media industry, but the legal system isn’t much better off, since the courts like to control the flow of information almost as much as the media does. British courts in particular are wrestling with the impact of these technologies on their ability to control the publicity around a trial. In the latest move, a judge has issued an injunction that specifically bans the publication of any information involving the case via Twitter or Facebook. But in the battle of social media vs the courts, the former will almost certainly win.

As The Guardian describes the case, the judge in question — a judge with the Court of Protection, which is associated with the family division of Britain’s high court — handed down the injunction on Thursday in the case of a woman known only as “M,” who has been in vegetative state since she suffered swelling in her brain stem in 2003. Her mother has applied for an order that would allow her caregivers to withdraw medical treatment and allow her to die. The judge’s injunction prevents publication of any information:

[in] any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook

Presumably, the judge in question would like to prevent this case from becoming a cause celebre for anyone who is opposed to euthanasia, which could drag the family into a painful public struggle. And that is a noble goal — but banning publication of things on Twitter or Facebook is simply not going to work.

As Hosni Mubarak discovered in Egypt, there are few controls that can be placed on social tools (apart from shutting down the entire Internet), since they allow for instant publication by virtually anyone with a keyboard. While governments — and presumably courts — could pursue people in the same way that the Egyptian and Libyan authorities have (and as the U.S. government has in its attempt to make a case against WikiLeaks) if the tweets or status updates in question occur outside their country they will have little recourse. As one British MP said, the courts are trying to be like King Canute, the legendary Danish king who tried to stop the tide by yelling at the ocean.

This injunction is also just the tip of the iceberg in Britain. The country is also notorious for issuing what are called “super-injunctions,” which allow certain people — in many cases, celebrities and politicians, but also corporations — to get media bans that not only forbid anyone from publishing information about a case, but forbid anyone from publishing that there is an injunction at all. In one famous example in 2009 known as the Trafigura case, the fact that information had been released on Twitter actually helped derail a company’s demand for a super-injunction.

In the early days of the web and the consumer Internet in the mid-1990s, a Canadian court tried to place a publication ban on information about the trial of sadistic killers Paul Bernardo and his wife Karla Homolka, but U.S. news organizations and media websites were more than happy to publish those details (one of my first uses of the Internet). Now, with the rise of real-time and mobile publishing through Twitter and Facebook and other social networks, the job of the courts is even more difficult — and arguably all but impossible. They can try to sanction jurors who tweet or reporters who do so, but information will find a way to get out.

Just as the “democratization of distribution” (as Om calls it) has affected the music industry and the movie business and newspapers and books, so its ripple effects continue to move through the legal system and through government. How those entities deal with it remains to be seen, but ordering it to stop is unlikely to work.

Post and thumbnail photos courtesy of Flickr user Jennifer Moo and bloomsberries

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  1. Prof. Peabody Friday, May 13, 2011

    I wish you had at least touched on the *morality* of stifling the media and free speech here. The article is very detailed about how it is probably not possible to do so and the functional problems involved, but how about taking a stand on whether a court in England actually *should* be issuing these super-injunctions.

    The whole thing smacks of Fascism. It’s not just *hard* to stifle speech on the Internet, it’s actually *wrong* to so so by any measure of human rights and decency.

    1. Thanks for the comment, Professor — you are quite right about it being wrong. I completely agree. And I probably could have been more forceful on that point.

  2. Carl Barron Friday, May 13, 2011

    Do you ever get the feeling that this is just a ‘Test Case’ to see what Governments can get away with?

    What’s next, all content published publicly must be first censored by an approved Government body?

    The beginning of a total freeze and blanket halt to Freedom of Speech considering the content for the excuse of the ban it is very, very suspect to me. Just an opinion you understand, but of course one must ‘NOT’ have an opinion, one must be told.

    Signed Carl Barron
    Chairman of agpcuk

  3. Tom Davenport Friday, May 13, 2011

    The previous three comments demonstrate a misunderstanding of the situation. This is an important and reasonable law to have in the right cases (legal right for child not to be identified during trial, as one example).

    The problem is the class divide that a rich person, perhaps a celebrity, can get a super-injunction for something like £50,000 ‘normal’ people can’t.

    Then there’s the other side of the argument where you could say that poorer people out of the public eye don’t need to gag national media in the first place.

  4. This is where the 1:N structure of censorship and controlled information breaks down. When one person speaks to/for many, you just have to shut up the one to silence the many.

    Social media (and wikis,) embody the N:M structure of human conversation.

    Where the law, and other organizations which like to pretend that they have the power of the law, have a problem is that social media is ‘recorded’ and may be tapped into at any point in the timeline of the communications.

    The very structure of the internet as currently implemented is as an N:M graph and is very difficult to disrupt. There may be choke points where information is focused and concentrated into a disruptable flow but if there exists a single point of leakage, eventually it gets out.

    The alternative is to live like North Koreans, Afghanis, people living in poor African states, and other people without information, wealth or power.

    1. Great comment – that distributed many-to-many nature is why social media can be so powerful, both in positive ways and not-so-positive ways.

  5. Hugh Salmon Monday, May 16, 2011

    What if advertisers refused to use Facebook and Twitter until they can verify their users are real people. Their valuations would plummet. http://bit.ly/lCXAHq+

  6. Hugh Salmon Monday, May 16, 2011

    What if advertisers refused to use Facebook and Twitter until they can verify their users are real people? If this happened their financial valuations would plummet: http://bit.ly/lCXAHq+

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