Billy Barnes is a JD Candidate at the University of Toronto.
A claim is being passed around online: that the Internet (Twitter, specifically) has beat the super-injunction. The claim is not quite true, but it’s another reminder that the best way to ensure that everyone knows about something is to try to prevent them from hearing it. But first, what is a super-injunction?
A “super-injunction” is an extension of the familiar publication ban or gag order. A publication ban prevents news reporters from mentioning facts or parties within a sealed court case. A super-injunction does this and enjoins the reporter from mentioning the existence of the ban itself. Readers, therefore, not only don’t know the facts, but they don’t know that there is something that they don’t know. We’re familiar with the concept in the national security context, but in the United Kingdom they are available in family and civil trials. According to the Guardian, super-injunctions are rising in popularity in the UK—they have received 12 this year (up from 4 or 5 in previous years) and gossip papers receive them on a weekly basis.
The claim of the Internet beating the super-injunction has its roots in a question tabled for discussion in the UK Parliament last week. An MP wished to ask the Minister of Justice about these injunctions and mentioned a particular one obtained by a company named Trafigura. The Guardian—being fairly interested in the topic themselves—wanted to report on the question but couldn’t because they were prohibited from mentioning the bans. They went to court to have the injunction varied and Trafigura opposed the motion.
Thanks to a carefully worded article in the Guardian, news of this spread online and investigative bloggers discovered many of the details of the case. Trafigura became one of the leading topics on Twitter overnight, details of the question were posted on blogs, and the report that was the actual subject of the publication ban was posted. Shortly thereafter, Trafigura’s attorneys backed down and the order was varied. It has since been lifted entirely and the Guardian has published both the injunction itself and details of the report. This has been widely hailed as a victory of the Internet over censorship, but did the Internet win the battle? In this particular case, I’m not so sure. Ask yourself the following question: what judge would uphold an injunction that forbids the reporting of Parliamentary proceedings? Also, what would Parliament do if a judge truly thought he could do that? Compared to that, bad publicity on Twitter probably had little influence on Trafigura’s attorneys and the judge.
The larger picture, however, is that the Internet is a force that can threaten the publication ban. Bloggers are less accountable than newspapers and harder to track down. WikiLeaks is an anonymously run website that specializes in publishing confidential documents. It is extremely easy for information to escape online. Attempts to remove the information may backfire significantly thanks to the Streisand effect. In 2003, Barbara Streisand sued to have an aerial photo of her house removed from a geographical survey available online. The publicity led to 420,000 people visiting the website in the next month and countless others seeing the photo as it was posted to blogs and shown on the news. Just how spectacularly the attempt failed is evidenced by the fact that I just linked to the photo myself. Likewise, Trafigura, by opposing the motion to vary, ensured that hundreds of thousands of people would hear about the document they wished to conceal.
Faced with unaccountability, anonymity, and Barbara Streisand, what’s a company to do? Obviously, they’re not going to stop asking for publication bans. They don’t all fail spectacularly. Where companies run into trouble is enforcement after the news is leaked. If history has taught us anything, it’s that trying to suppress something that has already been published does nothing but ensure that more people will read it. So the best strategy may be to do nothing at all. If Trafigura had not opposed the motion, then the Guardian may simply have published a story on the use of injunctions and only referred to Trafigura incidentally. Instead, the opposition became the story.
The same principle applies to any order or agreement requiring secrecy. The decision to act based on it has to be made with a number of practical factors in mind. First, what does the company stand to lose from limited versus massive exposure? When a low traffic blog violates a publication ban or publishes private/confidential information, it may not do any appreciable damage. Further, once the information has been published, it will exist cached in a number of places (Archive.org, Google, Bing, etc) over which the blogger has no control. It may be impossible to put the genie back in the bottle; is it worth it to try? I imagine that a company might think it worthwhile if they seek to protect a trade secret that is very valuable but only to a select group—a handful of copies of the secret Coca-Cola formula might be as dangerous as one million. Second, who is the company dealing with? A blogger and a professional journalist will have significantly different reactions to legal threats. Blogs thrive on controversy and cross-linking, and bloggers love to discuss legal threats. This leads into a third consideration: is the claim entirely reasonable? Some bloggers are very professional, check their facts, and carefully consider the issues before they post, but if there is any way a claim can be called unreasonable, then odds are somebody will call it that and others will repost that opinion. And they seldom issue retractions. Finally, is there a better way to do it? If a company or individual has a reasonable request for privacy or confidentiality, they might try asking nicely first. Imagine if Barbara Streisand had just called up the survey people and said: “Excuse me, could you please blur the picture of my home? I’m a very private person and it makes me uncomfortable to have aerial pictures of my house online.” And think carefully before asking for damages—whether it’s $25,000 or $50 million. That just makes the story so much better.
The decision to pursue legal action—even in the presence of a clear right to do so—must be carefully considered. It’s not always the right course, especially once the Internet is involved. It’s a strange order that often can’t be enforced without defeating the purpose. If a publication ban is practically unenforceable, why would companies still want them? Publication bans will still work because most people and most blogs get their information from traditional news outlets. Traditional news outlets receive benefits for playing by the rules and will therefore obey the bans. Further, in some cases, the beneficiaries of the bans may decide that it is in their best interest to pursue it. Thus, for the most part, they will still be effective in preventing information from escaping in the first place.