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).
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:
- 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).
- 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).
- Wait about 10 days and bring the family home.
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?