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.