I gave a talk at a lunch last week in London at which I was asked to speak about "Social Media and Revolution." While this is a very worthy and interesting topic to me, I chose to broaden (but I hope not trivialize) the topic by making a connection between the role of social media in the Arab Spring and the status of super injunctions against publication in the UK.
The role of internet and related technologies in the civil uprisings that continue to roil the Middle East have been well documented, including in this blog (see Internet Freedom Finds a Fertile Crescent). Where once a coup could be achieved or blocked by securing the palace and the radio station, today much of the world carries an even more powerful broadcast device in the form of an internet-enabled smart phone. What is perhaps less clear is the relationship between the Green Revolution and Englsih football.
First, a bit of background is needed. Under Englsih law it has been possible for some time for individuals to bring a court action to obtain an inunction (a form of legal order) barring the publication in any form of information which the petitioner has legal grounds to keep private. The resulting legal order is so powerful, barring even the mention that a court order has been obtained, that it is commonly referred to as a "super-injunction." In fact, there is nothing common about this legal process as the significant expense required (£60,000+) puts it out of the reach of most everyone other than the celebrities, including footballers, who typically apply for one.
Now, to return to the connection to social media-assisted revolution, while the events of the Arab Spring were unfolding, the blogosphere and the Twitterverse began to fill with posts and tweets naming a certain player for Manchester United and exposing a marital affair, the existence of which does not appear in doubt. The tricky bit is that all the while, the so-called mainstream press and broadcasters have been barred by super injunction from reporting these facts. Under US law, such "prior restraint" would be unimaginable save in cases of absolute national security, but current English law provides a broader right of privacy and libel protection.
While legal scholars on both sides of the Atlantic debate the finer jurisprudential points of these laws, I write to make a different point: Technology has moved on and regardless of legal doctrine there is no longer any practical means of enforcement. Much as the music business learned the hard way that it is very difficult to prosecute millions of illegal file sharers (as opposed to the services they used), so English judges are discovering that while they can stop on-shore publications like the FT and BBC from publishing, it is an order of magnitude more difficult to block 75,000 tweets from the far corners of the world.
The connection to the Arab Spring is, I hope, now clear. The internet, while it certainly can have a dark side and be applied to evil purposes, is a giant distributed transparency machine, which over time, tends to promote democracy. What President Mubarak could not shut down in Egypt, so English judges will fail in bending to their gag orders.
What is needed is not a better super-injunction for the wealthy, but a better global framework for all citizens which balances a legitimate desire for privacy and protection from online evils such as child pornography and malware with a healthy bias in favor of maximum political freedom and freedom of expression. President Sarkozy made a similar point at last week's e-G8 conference in Paris, but most commentators preferred to stick to the safe shibboleths of government leaders who wish to regulate everything and internet leaders who wish nothing to be regulated.
As a father and, I hope, a responsible leader of a digital business, I reject both extremes, but note the great practical difficulty in achieving the right balance - especially as the internet has blurred and superseded the application of national laws. So, for example, when a reader based in France reads a piece about an English footballer written by a blogger from Brazil who posted the article using a service hosted in the Amazon cloud somewhere in the US, whose law applies? This is not some theoretical law school exam question, but the everyday reality of the modern media business.
Governments everywhere should tread very lightly in this new global domain and resist the temptation to believe that their own national norms and beliefs apply universally. Their guiding principle, like Hippocrates, should be to "do no harm." They should also recognize that not all societal evils nor medical conditions are susceptible to a quick cure. Rather a few embarrassed English footballers than a nation deprived of the freedom of speech.