Seminal moment as social media trumps super injunction – victory for freedom of press, or a problem for the judicial system?

WHEN the history of social media is written, its authors will look back on the battle last week of Trafigura v The Guardian as seminal in its development.

But, before I consider why I suggest this, here is a recap of the key events as they unfolded.

Carter-Ruck goes to the high court on September 11 on behalf of their clients Trafigura (a British oil trading firm) to obtain a ‘super injunction’ to prevent the media from publishing the contents of the Minton report which related to the dumping of toxic waste in the Ivory Coast.

On Monday 12 October, Labour MP Paul Farrelly tables a question in Parliament, questioning the implications on press freedom of such a gagging order.

Carter-Ruck insists the injunction prevents the Guardian from reporting the name of the MP, the nature of the question, the company which had sought the gagging order, and the type of order preventing them from publishing. (David Leigh, head of investigations at the Guardian, reveals this in an article posted online in the evening).

But, overnight, hashtags #trafigura and #gagcarterruck had become popular topics on Twitter, and speculation about the Guardian’s reports was rife. The Spectator and bloggers including Guido Fawkes had published Farrelly’s question in full.

Tuesday, 13 October…Alan Rusbridger, editor of the Guardian, tweeted at 9.49 the Guardian, backed by other national newspapers, was due to attend a high court hearing to challenge the injunction reporting on Parliament….at 12.40 he says the hearing is fixed for 2pm, but hints there “may be devs” [developments]…just 13 minutes later he declares “Victory” for the Guardian

…at 13.08, David Leigh wrote Carter-Ruck had dropped its challenge, and the Guardian could now report proceedings in Parliament…

So, thanks to the frenzy of speculation on Twitter and the blogosphere, Trafigura concluded they could not suppress the Guardian from publishing parliamentary proceedings. Twitter had contributed to a “great victory for free speech“, declared Rusbridger.

It’s a story with drama, fast-paced events, and victory achieved against a powerful company when individuals work together – enough to warm the heart. The Erin Brockovich for the Noughties. Who to play Alan Rusbridger? Clooney? Pitt? Damon?

But, wait. This tale doesn’t really have a leading man. We will need to draw on the CGI talents of those at Pixar to reproduce an army of individuals from across the UK and beyond; fingers poised at their keyboards, ready to take on the enemy.

This was without doubt a series of remarkable events. Twitter and its tweeters have demonstrated to those who deride it as another social media fad, soon to pass into the history books, it can be used for good – in this case, to uphold the freedom of the press.

In just a matter of hours, speculation in hundreds, possibly thousands, of tweets and blogs about who was suppressing the Guardian from publishing details of the MP and the question forced Trafigura into a corner, from where they instructed their lawyers to retreat and withdraw their gagging order.

It was a victory for free speech. But to do so the injunction, obtained legally through the courts in this country, was broken. There is no separate law for news organisations and social media. Law passed in this country relating to privacy, defamation, etc. is equally applicable to both. The Guardian, however much they wanted to publish, had observed the injunction. The social networkers did not.

The Guardian wanted to publish information they considered to be in the public interest (Something only Trafigura would probably not agree with). Twitter and the blogosphere helped them achieve this.

But, the ease with which information, rightly or wrongly kept secret, can be made public online – with no regard to injunctions imposed by the courts, and with no apparent legal ramifications for those who tweet or blog about it – could potentially be problematic, even dangerous.

Mainstream news organisations would not likely publish information when it could damage national security, and neither would many bloggers. But the sizeable audience online communities like Twitter present to those who would not follow injunctions on such occasions is worrying.

It is why historians of this period may come to reflect on the Trafigura v The Guardian episode as a seminal moment – and not just in the development of social media, but in the wider history of our time.

As social media continues to grow, the government and the judicial system needs to review how media law is applied to the online world, before this case sets a precedent for the future.

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