CTB and Twitter: I Could Have Saved CTB Time, Money and Publicity

This is my first commissioned blog post.

Yesterday afternoon during the height of the CTB/Twitter fire-storm a message came through from popular Twitter artist/comedian/lawyer @loveandgarbage "BREAKING: Public demand Murray blogpost on CTB issue"

I realised this story did demand my attention but it was sunny and I was sitting in the garden eating an ice cream. As the world was going to end at 6pm I wasn't about to go inside and write. Tomorrow I told @loveandgarbage - I would do it tomorrow (assuming tomorrow would never come).

Today  

Well unlike Little Orphan Annie for me tomorrow has come (to the disappointment of Harold Camping). As I said I wasn't about to start blogging yesterday afternoon in case all my readers were Raptured before the end of the day (or I suppose it should be the End of Days).  Now that I seem quite sure we're all going to be here to enjoy Survival Sunday (c'mon Blackpool) it seems the perfect time to talk about CTB and his battle to keep his identity as professional footballer CTB under wraps. 


Survival Sunday now means something else for CTB. For those of you unfamiliar with the story (is there anyone?) - CTB allegedly had a sexual relationship with Big Brother star (is this right - star?) Imogen Thomas. This would not be a problem except CTB is married and has a family. When Miss Thomas threatened to go public with details of the affair CTB obtained an injunction against publication. It seems (and I might be wrong in this) that it is wrong to refer to it as a superinjunction (at least now) as the order was varied by Justice Eady to allow for Miss Thomas to be named in the press. A superinjunction cannot be reported at all - like the one which is held by the sitting MP who obviously cannot be named (although like CTB most of us know who they are). Apparently on Wednesday last week CTB's lawyer's Schillings applied for a Norwich Pharmacal Order against Twitter and persons unknown. In legal terms this is the sensible next step and there is a form of precedent for this in the Blaney Blarney Order. But the big difference with Blaney and CTB is who the order is being served on. In Blaney Matthew Richardson came up with the frankly brilliant idea of serving on the account and asking the account holder to identify themself, whereas as far as I can glean Schillings have gone for a straight Norwich Pharmacal which they served on Twitter on Friday. 


CTB Schillings and Twitter  


The effect of serving the order was to throw fuel onto a fire that had started to smoulder. As I discussed earlier about this case it is the hint of the forbidden that causes people to gossip.As the identity of CTB and other injunction holders entered the public consciousness people started to slowly lose interest. Hash Tags such as #superinjunction which had been trending seven days before had stopped trending and attention turned to the wider issue of the Neuberger Report. Then Schillings and CTB threw fuel onto the smouldering fire. As one would expect an explosion occurred. It has been reported that Twitter had barred CTB's real name from trending but that upon receiving the order removed the block. this seems highly unlikely instead it was simply that a sudden weight of interest in the story coupled with two effects (below) caused the star's name to trend with reports that it was being tweeted sixteen times per minute. What caused this perfect storm?  



Well first there is the Streisand Effect. This states that when someone tries to suppress information online the internet interprets this as damage and routes around it - causing greater publication of the data. The second is the #IAmSpartacus Effect. This was seen clearly in the Paul Chambers case. Users of Twitter have an unusually strong community spirit. If you attack one you attack them all. When Schillings launched the Norwich Pharmacal Order on Twitter it meant that there was an attack on the community. People who would never name CTB began doing so in solidarity with the members under attack. Suddenly CTB's name was everywhere - across Twitter, across Wikipedia and elsewhere (even appearing in several jokes on online sick humour site Sickipedia). As a method to keep his identity private it was without doubt the worst thing he could have done.

What next then? Well the Norwich Pharmacal Order is still in play so the next move is Twitter's. Now as has been pointed out ad nauseum Twitter is not directly subject to the jurisdiction of the Courts of England & Wales but a source that I spoke to some time ago (makes me sound like a proper journalist) said that Twitter had indicated it would comply with recognised orders of any Court. Now though comes the litmus test. Will Twitter hand over account holder details to Schillings and the English Courts? If they do so they risk massive commercial damage as users leave Twitter over a perceived failure to protect their identity. If they do not they will be seen as failing to assist the Court in the lawful pursuit of its duties. For Twitter this really is a catch 22. They will hope that the reaction to the story causes Schillings/CTB to drop the action. This gives them an easy way out. If not they will have to decide whether to voluntarily accept the order or to reject it and make a first amendment argument. Watch this space.

How I could have saved CTB Time and Money (and Needless Publicity)

The CTB Twitter story is for me the perfect case study which finally proves my theory of symbiotic regulation.For some six years now my research has been focussed upon how one brings about effective regulation in Cyberspace.  Why do some attempts to use legal (or even extra-legal) controls fail while other succeed. I know that the traditional model (the Cyberpaternalist model) wasn't true. It suggested that control could be effected through a mixture of law and code - a perfectly controlled designed environment where you could only say or do what the regulators allowed. This only works if you imagine the internet is a communications device only. The internet though is made up of communities of people and communities require socio-legal controls to be effective. These ideas began to coalesce into my 2007 book The Regulation of Cyberspace.  You can read the preface and chapter one on my website. Basically my view is that online communities require to be controlled through regulatory settlements which are socially (politically) acceptable to that community. Otherwise the community will design a response to the attempted control which undermines the attempted control and often (as we see here) overwhelms it. The answer is symbiotic regulation - regulation designed to harness the political will of the community not one which attacks its core values. Two short papers with variations on the symbiotic regulation argument are available from my Selected Works page. They are Symbiotic Regulation and Regulating the Post-Regulatory Cyberstate.  

What should CTB have done from a Symbiotic point of view?

This is a difficult case as it depends upon his aims. I would have managed his expectations and said he was unable to keep his identity secret. In order he should do the following:

1. Apologise to his wife and take his family away from the UK for a short period (as John Terry did during the Veronica Perroncel story).  
2. Make a public statement admitting the affair (assuming it is true, otherwise deny) and asking for people to respect his children's privacy - (this kicks in the PCC Rules and appeals to the family responsibility sentiments of most Twitter users. Although they feel no sympathy for the player they do for his family, especially his children). 
3. Wait about 10 days and bring the family home.

This wouldn't prevent the children being exposed to the story, the only thing which would have prevented this is not to have an affair in the first place. But in the ten days his family were away much of the story would have burnt itself out. Obviously there would be media interest in the family's return to the UK but the PCC rules would protect the children to some extent. The online forums and Twitter would though mostly have moved on to something else - probably the actor/prostitute story (have you noticed it has started to fade away because they didn't seek a Norwich Pharmacal?)

Final Thoughts

In the 1890s it was the Box Brownie camera. Today it is Twitter. The relationship between technology and privacy will always be problematic.  What though can we learn from the past? Well as Mark Easton points out the famous Warren and Brandeis Harvard Law Review article The Right to Privacy found the highly influential lawyers railing against the invasive effect of the portable camera. They noted that "modern enterprise and invention" were being used by the press "to satisfy a prurient taste" for the details of sexual relations. This they said was "overstepping in every direction the obvious bounds of propriety and decency" and argued the press had "invaded the sacred precincts of private and domestic life".


One hundred and twenty one years on how have things improved? Have the press taken account of the Warren and Brandeis argument? Are things better? Let's look and see? 

Final thought. Based on this is there any way you can imagine the blunt instrument of the court order will be effective on Twitter?

The Problem of Gossip, Rumour, Privacy and Superinjunctions

Super-injunctions are the order of today, with the media obsessed currently over the Twitter breaches which although specifically highlighted in the last 48 hours have been ongoing for the last few weeks ever since the initial rash of reports that there were three injunctions involving a married footballer who had had an affair with a former big brother contestant, a "leading actor's" visit to a prostitute and that a TV actor had an affair with a colleague.  If you want to read the standard commentary then go to any one of a hundred news sites who are foaming to give you the clues to unmask these people (and others including the second footballer who had an affair with model Kim West, a chef who used the process to gag reports of an ongoing tribunal, the TV personality caught in pictures enjoying the company of another celebrity and the actor/comedian who enjoys something more "interesting" in the bedroom) - a good example of such a story is this one in the Daily Mail. A few journalist are actually doing a fair job of analysing the legal position such as Dan Sabbagh's story for the Media Guardian but I'm here to argue something different: super-injunctions are harmful to privacy rather than a positive defence of it.

Why are super-injunctions counter productive?


Let's look at what has happened in the four weeks since the original stories surfaced. Some things have been revealed such as Fred Goodwin had an injunction preventing him from being named as a banker in a story relating to an affair and Andrew Marr had a long held injunction preventing him from being named in relation to a child born of a woman he had had an affair with. What would have happened without these injunctions? The aphorism is today's news tomorrow's chip paper. We would have had a very short splash in the papers about these affairs and then probably they would have been forgotten (footballers and politicians aside news of affairs tends to quickly fade from the memory) - who remembers honestly that Ralph Fiennes split from his long term partner Francesca Annis after a rumoured affair with a Romanian singer (or that he met Annis while still married to Alex Kingston) - if you argue that was five years ago what about this story from March this year? Honestly did you remember them?

The problem of the injunction (super or otherwise) is twofold: (1) It extends the life of the story and (2) It causes anguish to others (in breach of their Article 8 Right). Both these have the same root cause - the human desire for knowledge. We crave what we do not have, what we do not know, but quickly forget these things when we have them. How often have you desired the latest gadget, craved it, and after you have bought it found it quickly relegated to the sidelines as you more on to the next new thing? The same is true of knowledge and information - we always want what we're told we can't have. The injunction makes it forbidden knowledge so we know we must have it. If you knew (or know) who the actor or the comedian is you would know it would have gone the same way as the story from March which I referred to earlier. In fact the actor/comedian story only came about allegedly because he was so obscure and insecure he said to a prostitute the immortal line "do you know who I am?" Daniel Solove knew about this in 2007 when he wrote his book The Future of Reputation: Gossip, Rumour and Privacy on the Internet. 


Solove noted that one of the core activities of humans is gossip. We all do it. Stereotypically woman gossip in the hairdressers or over coffee while men gossip in the pub. Today we have built a global gossip engine (it's not the World Wide Web more the Global Gossip Gadget. We continually update Facebook with comments about people we know, we Tweet things we know (or think we know - see below), we Blog, we Comment, we Gossip. The problem is gossip is not based upon factual knowledge but about innuendo and rumour, this causes potentially much greater harm than simple facts. The danger is that innocent parties get harmed.


Why are super-injunctions harmful to privacy?


On Sunday a new Twitter account was opened by someone who thought they knew all the facts about current injunctions. I can't tell you who they are or the address of the account. I can't tell you what they said but it looks something like this:

The Redacted Twitter Feed

The problem is they didn't know it all and an innocent party was dragged in. They claimed (and I can report this) that the TV personality caught in embarrassing photographs with another celebrity was Jeremy Clarkson with Jemima Khan. This is not true yet two innocent people have been caught up in a glare of publicity because a third party wishes to deflect publicity from themselves. As Khan tweeted yesterday:

I hope the people who made up this story realise that my sons will be bullied at school because of it. Plus I'm getting vile hate tweets.

This is the crux of the problem. The injunction has not protected the net privacy of everyone involved instead it had moved the privacy invasion from one person to another - it is a re-allocation of the effect and as there is more interest in the story due to the "illicit nature" of the story the net invasion of privacy is magnified. One person (who I cannot name for legal reasons) is protected (for the moment eventually the truth will out) while another has her private life unnecessarily infringed to harmful effect for her and her family. Why should Jemima Khan suffer because another celebrity wants to protect his family? The question therefore is "should judges take into account the possible effects on third parties before awarding such injunctions?"

Jemima Khan is not the only one to suffer. The "well known actor" who visited prostitute Helen Wood and who "kissed like a virgin" has been named extensively on Twitter and Wikipedia. Despite this there are still today people who are falsely naming him to be Ewan McGregor. This was due to the way the media reported the story at the time. They said he was a world famous movie star who was very protective of his family who had done TV work. This led to rumour sites like this one recklessly suggesting Ewan McGregor as he was one of the few internationally famous UK actors who fitted the bill. It never was Ewan McGregor yet his family have been subject to a month of rumour and speculation and because he is famously protective of his private life unlike Jemima Khan he has stayed quiet - which for some people mean it must be true. Another family's privacy destroyed by an injunction.

Of course these two are not the only two affected. Also harmed have been Gabby Logan and Alan Shearer.

I'm going to finish with words I never thought I would write. I agree with much of what Steven Glover has written in the Daily Mail.  I do not agree though that what I argue should be a green light for the mainstream media to do what they like. Bizarrely I may be arguing for super-injunctions over injunctions as if we are never aware of the injunction there is no gossip. The problem is these types of injunctions are rarely watertight and once their existence becomes known the harm to others begins. You cannot ban gossip and gossip based on incomplete knowledge will almost always harm innocent parties. Judges need to consider this (a) in decising whether to grant an injunction and (b) deciding what details about it may be reported.

NEWSFLASH: Osama Bin Laden Killed by American Operatives in Pakistan: Other News of the Weekend.

Tonight the PRESIDENT of the UNITED STATES OF AMERICA (POTUS) announced that the CIA in co-ordination with the Pakistani Government located and killed OSAMA BIN LADEN Public Enemy number one (here and abroad.) That news is important and it is welcomed. I cannot say I am disappointed in anything other than the time it took to find him. May he never rest a day in eternity. I hope those 76 Virgin(ian)s he thought he would get are kicking the crap out of him right now in Hell. Congratulations to President Obama, Leon Panetta and the countless agents of the FBI CIA and of course of armed forces who have worked in hopes of this announcement, for bringing this terrorist to justice. No, it doesn't bring back our loved ones and it will never erase the misery of 9/11 or the days that followed it, but it does provide a sense of closure.

As for other News I found interesting, all of it pales in face of the news above. Just in case however you want to know what I thought was otherwise interesting, here are a couple of articles I wanted to write about:



I was going to use the blog tonight to talk about the futility of charging a nine year old child with murder for shaking a baby and how we need to separate the emotion of the parents losing an infant from the need to avenge a death with the "death" of another child when that child does something horrible.

I was also going to talk about the need for an "Expungement" Statute in NY given the fact that people arrested and convicted for even minor crimes can not get jobs anymore because of the Internet's ability to derail their job search with convictions. I was going to point to an article in the NY Times (semi subscription) which points out that people who have paid their debt to society long ago still cannot get work because of small or substantial indiscretion decades before.