Electronic Frontier Foundation - This blog post was also published on the Index on Censorship blog.
Despite a super injunction in place to keep his name and the story of his extra-marital affair out of the tabloids, a British footballer has found that where there’s the Internet, there’s a way...for the story to get out, that is.
Partially in response to the draconian nature of the super injunction the footballer obtained, tens of thousands of Twitter users published his name, briefly turning it—along with the name of his alleged mistress—into a Twitter trending topic, with purportedly as many as 75,000 individuals tweeting the name. The athlete—who has now been named in British media as well as in Parliament as Ryan Giggs—reportedly obtained a court order in British High Court to demand Twitter reveal the identities of users who had posted the tweets. We call this public backlash to overbroad censorship attempts the Streisand effect.
Publishing truthful information about a matter of public concern is and should be protected expression. Yet these injunctions prevent the press and the public from reporting on details of a court case, and can even include preventing a mention of the fact that an injunction has been taken out.
The controversial super injunction procedure was created by the 1998 Human Rights Act and aimed, nobly, at protecting individuals' privacy, while also protecting their right to freedom of expression. However, the balance here is plainly off. International freedom of expression organization, Article 19, has noted that super injunctions are a form of prior censorship that is not permitted under international human rights law—including permitted limits to Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights.
It's easy to see why. In this case, as in reportedly many others, super injunctions have become a tool of powerful public figures to try to stop embarrassing facts from being discussed, and in this instance the injunction process is ironically being used to require Twitter to pierce the anonymity of its customers based on the content of their speech. Particularly in this situation—where very public figures who actively seek public attention much of the time are trying to ensure that the public only learns the heroic, and not the embarrassing, facts about them—these broad super injunctions raise deep concerns.
While the situation raises raises many questions, three issues jump out at us:
Blaming the Platform - UK needs Intermediary Protection
In the United States, intermediaries like Twitter are protected by Section 230 of the Communications Decency Act of 1996. CDA 230 provides online intermediaries that host speech with protection against a range of laws that might otherwise hold them legally responsible for what their users say and do. In essence, CDA places the responsibility for speech on the individual speaker rather than on the platform. Read More
