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digital, privacy, social media, technology

Twitter, Privacy and Super Injunctions

Earlier this week an anonymous Twitter user posted six tweets naming a list of celebrities who have allegedly obtained super injunctions to prevent details of their private lives being made public. Given that many of these rumours have been circulating around social networks and message boards for weeks, this really amounted to little more than collated gossip. Nevertheless, Twitter traffic was driven up 14% as more and more wanted to find out the names behind the super injunctions. According to Experian Hitwise, Twitter had its highest ever peak in UK Internet visits on 9 May 2011. [1]

Since the super injunction revelations, more and more commentators and politicians have been calling for some sort of regulation or privacy law that takes Twitter and other new technologies into account. Jeremy Hunt, the UK Culture Secretary, said it was a “crazy situation” that super-injunctions were banning newspapers from publishing stories which were freely available online. Technology, and Twitter in particular, is making a mockery of privacy laws and pledged to investigate how regulations can be improved. [2]

So is more regulation the answer? The current legal situation means that if a newspaper had published a piece by a journalist naming those names, then it, rather than the writer, would have been prosecuted. But this law applies to Twitter too. According to Danvers Baillieu, a senior associate and social media specialist lawyer at Pinsent Masons, anyone who tweets information which they know to be protected by any kind of injunction is in contempt of court. ‘If you know a piece of information is under an injunction and you broadcast it in any kind of way – including tweeting it – then you are inviting trouble,” he explained. ‘The same is true of those who re-tweet information as they are re-publishing the information and it is no defence to say that you were not the person to first break the terms of the injunction.’[3]

Everyone understands that super injunctions and privacy laws are getting increasingly difficult to implement successfully in the digital age. It is questionable whether super injunctions are effective because of the jurisdictional and practical difficulties of enforcing them across the web. For example, the Twitter site itself is based in San Francisco and is therefore outside of the jurisdiction of the British courts.

The other issue is one of ownership and responsibility. Twitter states that its users are responsible for their own tweets and not the company. Twitter’s business model rests on the fact that it does not control what its users post. Moderating tweets would require the employment of thousands of lawyers around the clock. It would be an impossible challenge to prosecute several thousand people, particularly when a huge proportion of them are anonymous or pseudonymous. Because of this, Dominic Lawson argues, ‘in the twitter era, privacy is finished’.[3]

Jack Shafer from Slate magazine also thinks that in the age of Twitter and Facebook privacy is now dead. ‘Pre-Twitter, our most extreme comments tended to stay inside a private space…But Twitter has shrunk private space or, to be more positive about it, has enlarged public space to the size of an NBA arena’. [4]

It is true that Twitter and Facebook has shrunk what we consider as the private sphere. However, we cannot blame these new technologies or our enthusiastic adoption of them for the way our notions of public and private have been transformed. Our growing tendency to make a public show of private behaviour is not the fault of technology. Collectively we have allowed the erosion of privacy as a social value and the increased publicisation of private life.

New laws to regulate social media sites like Twitter are not the answer. Nor are more laws that ban talk about people’s private lives. Instead we should be looking to re-cultivate the private sphere while at the same time re-invigorating public life and ideas in a transparent and open way.

Theresa Clifford

[1] Experian Hitwise, 10 May 2011
[2] BBC news, 10 May 2011
[3] Daily Telegraph 11 May 2011
[4] The Independent, 10 May 2011
[5] Slate Magazine, 10 May 2011

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About Theresa Clifford

I am a senior manager/digital consultant with international agency experience in leading the delivery of holistic customer-centric strategies and digital programmes. I am also a Tutor/Presenter in Digital Marketing for the Marketing Association and a regular writer and speaker on digital trends. If you would like to discuss any aspect of your digital requirements, please feel free to contact me. (e) mstheresaclifford@hotmail (m) +64 21 026 17779

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