May 232011
 May 23, 2011  Posted by  Court, Featured News, Non-U.S., Online

Hélène Mulholland reports:

David Cameron has suggested that the UK’s current law on privacy is “unsustainable” and needs to “catch up” with the advent of social media, which has left the press at a disadvantage.

The prime minister made his comments as ministers came under pressure to respond to the escalating privacy battle between celebrities and the media following the decision by a Scottish Sunday newspaper to name a footballer at the centre of a storm over a privacy injunction.

Tens of thousands of Twitter users had already named him.

The legal adviser to the Sunday Herald – which published the photograph yesterday – condemned the “surreal, parallel universe” in which everyone with access to the internet knows who the individual is, but mainstream news organisations cannot publish his name because of the privacy injunction.

Read more in The Guardian.

This situation has really stimulated a lot of discussion and debate. I wish analyses did not blame Twitter, as it’s really not Twitter as a company that has done anything unusual here. Any U.S.-based site where posts or comments are public could have the same impact in terms of defeating the purpose of a superinjunction.

Some people have made reasonable arguments that the courts should not be imposing such draconian injunctions, but those arguments generally do not come up with an alternative that would protect the privacy of individuals or the rights of individuals to have a private life that is not subject to public gossip or scrutiny. Writing strong defamation laws is not a solution as it is still an after-the-fact approach that does not put any cats back in a bag.

Not only have the superinjunctions been questioned as a matter of law by those who think that the UK judiciary may have gone too far, there is also some doubt as to whether they can ever be effective, or whether the very fact that a superinjunction has been issued will serve as a challenge to sleuths determined to unmask the individual – as seems to have happened in this case, at least in part. has long argued that celebrities are still entitled to their private lives and public curiosity is not the same as something being a matter of genuine public interest in the sense of a public concern.

While U.S. citizens tend to revel in our free speech protections and decry superinjunctions as a rich man’s tool to be flouted, we would be foolish to lose sight of the fact that many of us would really not want to see everyone’s life as an open book in the media.

Different countries have different privacy laws and media laws. If privacy advocates thought the EU concept of a “right to be forgotten” would run smack up against censorship and free speech issues, this superinjunction issue poses even greater challenges in terms of harmonizing often conflicting privacy and media or speech laws. Will U.S. laws be the “spoiler” for EU laws? Perhaps, but maybe that is not something to cheer about.

When all is said and done, this is not about being fair to the press, although the media certainly focuses a lot on that issue in this case. When all is said, this is about the fact that everyone has something they would prefer to keep private in their lives. How do we protect that right without trampling on the rights of those whose competing rights to talk about their own lives might be affected?

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