Freedom to Tweet – human right or misuse of medium?

Hot on the heels of Giggsy being exposed (according to the Sunday Times apparently by a banker rather than a journo) and the shredding of Fred Goodwin’s superinjunction which the Sun has been seeking to finish off in the High Court today), privacy pundits have again been in uproar over an anonymous tweeter who has tweeted information about a further super or not so super injunctions (helpfully supplying links to documents and related media reports).

The number of followers signing up to the new rogue tweeter had exceeded the 800 mark at last count while the number of injunctions that have been listed over the past 48 hours stands at 14 - which matches the 12 to which the Daily Star made reference recently - Mediabeak notes that this anonymous tweeter – noted for displaying a profile picture of a mask – is using the same sort of mask as a blogger listing those considered to be in the frame for being the banker Fred Goodwin bedded…(with Schilling’s on the warpath I will not be supplying the links!).

The latest lot of links and claims to be uploaded onto the twittersphere has sparked calls (notably by claimant lawyers) for the courts to take action over what the Lord Chief Justice referred to the other week a ‘misuse of modern technology’. He considered Twitter to be completely ‘out of control’ but is it?

Twitter is merely a platform and not the messenger so should it be subject to legal grim reaping? Having been threatened with legal action over the tweets that are alleged to have outed Giggs over his affair, Twitter has already responded reservedly saying it will comply with legal orders (but will inform its tweeters if it has to hand over their details) however it will not proactively seek to serve up its users and assist claimant lawyers with fishing expeditions to find a tweeting scapegoat.

Legal action over the Giggs Twittathon could, if it proceeds, show how effective or futile such a threat or remedy it is – can one really pursue over 1,000 tweeters for re-tweeting something that had been put into the public domain by an MP in Parliament? Would the individuals tweeting really know about the terms of the injunction their tweets are alleged to have breached? In the minutes to hours after Gigg’s naming in Parliament, various media gradually became brave enough to risk it –whether they thought qualified privilege would cover them or that there is safety in numbers remains untested as yet.

There are however limits to being untouchable on Twitter. Last week South Tyneside Council was able to force disclosure of Twitter accounts by taking action in the US (Californian) courts which have jurisdiction over Twitter. The merits of that action and its outcome remain in question and to be seen.

Mediabeak suggests that the Twittersphere is in fact no different to other forms of media and social media. Yes there is and ought to be the right to freedom of expression and imparting information (consistent with Art.10 European Convention rights and US First Amendment rights) but where that which is tweeted is libelous, invasive of privacy, offensive or illegal then the tweeting and those publishing such tweets should not be above or shielded from proper legal process.

Twitter is not the publisher as some have suggested but is more akin to an ISP of websites or blogs – its responsibility is to comply with legal orders where its users have fallen foul of the law and legal action requires Twitter to comply with an order. If what has been tweeted is sufficiently in breach of or invasive of a celebrity’s (or any person’s) rights then it will be subject to the same checks and balances that exist under current legal process and the new privacy law – is the reasonable expectation of privacy of the person(s) being tweeted about such that it should trump the tweeter’s competing right to freedom of expression? – the answer lies in the public interest element and how the courts perceive that.

Two further issues arise in relation to Twitter:
1: When is something in the public domain and what is the position of re-tweets?
2: Pre-publication disclosure and injunctive action (such as Max Mosely and others dream of) are a pipe dream given the size and global reach of users whose tweets cannot be predicted.

What is not readily clear for twitter users (who are after all not news editors or required to be versed in – or indeed bound by – regulatory codes of conduct) is that they are not allowed to tweet something just because it is in the public domain or Twittersphere (who says so? and how is it binding on them). Would re-tweeting be treated the same as repetition/republication when it comes to libel? – logically one could argue yes but again, is this enforceable across Twitter? – the current cases may provide an answer.

Legal principle - the new privacy law
Football shagging orders
PCC and Privacy Regulation
Twibel tweets - Twitter and Libel

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