Friday, 20 May 2011

Is this the end for Twitter?

Today's big news on superinjunctions was supposed to be the report by Lord Neuberger's committee into the facility with which the things are granted. But Neuberger basically said that everything was working fine, the number of actual superinjunctions is very small (only two being "known" - although the whole point about a superinjunction is supposed to be that it isn't known) and that perhaps newspapers could be invited along to pre-injunction hearings if they promised not to write about it. There was an interesting discussion about the extent to which the media were protected by Parliamentary privilege if they reported on injunction-breaches by MPs and peers, but it's unlikely the report presages any major changes in the way the system operates. It's useful, though, if you want a primer on the difference between a superinjunction and an anonymised privacy injunction. (pdf)

In the event, the story broke around teatime. The footballer known as CTB - the same CTB, presumably, who took out the injunction in the first place - is suing Twitter and "persons unknown" for breach of the order banning anyone from naming him as the man who slept with Imogen Thomas. It's a well-known case (and if you haven't already done so, check out the devastating ruling by Mr Justice Eady, a real page-turner even by his standards).

The footballer has not been named in the pages of any newspaper, yet his name appears to be widely known, at least to users of Twitter who have the slightest interest in such things (and even many who don't). Indeed, for weeks it has been something of a running joke. So whatever happens it's too late to put this particular cat back into the bag. But while the action may seem futile, even counterproductive, it nevertheless has potentially huge repercussions.

Little is known about the case against Twitter. However, a press release put out by solicitors Charles Russell seems to confirm that the CTB who made the application is the same CTB who knew Imogen Thomas. The statement also reveals:

The action was commenced on 18 May. The “persons unknown” are described as those “responsible for the publication of information on the Twitter accounts” but the latter are listed in confidential appendices. It relates to the widely-reported posting on May 8 of a series of “tweets” purporting to name a number of celebrities who had obtained so-called super-injunctions, and describe the activities covered by the injunctions.

The other night I asked privacy law supremo Hugh Tomlinson QC over dinner (as you do) my big epistemological question: are you breaching the injunction if you haven't been formally notified of its existence, but merely suspect that there is one? Yes, he replied. I imagine that's what the vast majority of people "naming" the footballer on Twitter are doing - going with the group. As Greta Christina explains:

The human brain is wired with a number of cognitive biases and errors in thinking: biases and errors that have good evolutionary reasons to be there, that have helped our ancestors survive and reproduce, but that do get in the way when we're trying to carefully figure out what is and isn't true in the world. And of all these biases, one of the trickiest is communal reinforcement -- otherwise known as the argument from popularity. "If lots of other people think this," our mammalian hindbrain tells us, "it must be true!"

It's a bias that does have real evolutionary value. If everyone in your tribe is screaming "Tiger!", and you don't see one, it still makes sense to run. And I would argue that this bias has some genuine philosophical value as well. Other people can, in fact, be a useful reality check. After all, it's not like I'm always right about everything. If everyone I know is telling me I'm wrong about something... well, that's not automatically a reason to change my mind, but it is a reason to stop and think for a moment about whether I might want to.

In this case, everyone on the internet is not screaming "Tiger!" (as they might be if Mr Woods had committed his marital indiscretions in Britain). They're screaming "Giggs!" The vast majority of them do not know the details of the injunction - any more than I do - they are merely repeating a rumour. A rumour that has now created its own truth. Whether the rumour is true or not, its existence is a fact that exists independently of the case to which it allegedly refers. A fact which is now as fully in the public domain as any fact can be that has not appeared in a British newspaper.

True or false, it is information I do not want to know. I have no interest in football or reality TV. In the good old days of tabloid kiss'n'tell, I would have been spared these dreary "revelations". As it is, thanks to Twitter, thanks to the injunctions, thanks solely to the fact that I'm not officially allowed to know any of this (if it's true, of course; perhaps it isn't) I will never be able to get these dull people and their duller alleged sexcapades out of my head. I would forget it if I could. I can't, and probably never will.


It's not yet clear how Twitter will respond to the lawsuit. Their terms of service specify that "international users agree to comply with all local laws regarding online conduct and acceptable content", but the most notorious of the Twitter accounts listing alleged injunctions (@InjunctionSuper, which posted details of six supposed cases on 8th May and then went quiet), which seems to be the main target of the litigation, has not been taken down. The company is based in the United States and has little to fear from the English courts - although any assets they have in this country might be vulnerable.

In the short term, however, two things are clear. It is impossible for Twitter to delete all references to the alleged affair from their website. It has long since gone viral. It had gone viral even before the @InjunctionSuper account was set up, which is one reason why (unlike David Allen Green) I don't think there are good grounds for assuming that the account must have been a deliberate leak by someone in the know. (At least, if there are such grounds they do not lie in the content of the Tweets themselves, but rather in the immediate and disproportionate attention they attracted.) Predictably, the main result of today's news on Twitter itself has been the proliferation of the name Ryan Giggs. Twitter, as a company, is powerless to shut this one down, except by shutting down Twitter itself.

Secondly, there are now so many thousand "persons unknown" that they cannot all be sued, or even identified (the more likely intention). And even if CTB's lawyers were able to track them all down and serve them with injunctions, the self-defeating effect would be to confirm the facts. Suspicion would become actual knowledge.

So how can Twitter satisfy the demands of the English courts - assuming, that is, that CTB's case is found to have merit? The obvious way would be to block Twitter in the UK, putting it permanently out of the reach of British judges. It could happen. Already some US-based news and gossip sites, including National Enquirer, are unviewable in Britain without use of a proxy server, so alarmed are the publishers by English libel law. If CTB's case succeeds, or inspires others, Twitter's bosses might begin to see such a course of action as preferable to fighting costly legal battles on foreign soil.

I don't think I could live without Twitter. I'm frightened.

UPDATE: A few more details have emerged since I wrote this, the most important being that - according to BBC news - an order was granted against Twitter on 18th May requiring them to disclose the identity of @InjunctionSuper. It remains to be seen how the company will respond.