Co-authored by Cindy Cohn

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.

As Eric Goldman noted in a position paper for an OECD experts workshop on Internet intermediaries on the benefits of immunity regimes for Internet publishers:

“The United States has seen an explosion of entrepreneurial activity from Internet publishers of reputational information—a process fostered by 47 U.S.C. § 230, which Congress enacted in 1996 as part of the Communications Decency Act. Content originators remain liable for their content, but 230 provides Internet publishers with a powerful immunization for content originated by third parties. With 230’s protection, Internet publishers are developing innovative ways to supply consumers with helpful reputational information, freed from concerns that innovation will increase their liability for user content..."

CDA 230, along with the First Amendment, would protect Twitter (and likely most U.S. Twitter customers) should the footballer attempt to enforce a U.K. judgment here in the U.S., assuming Twitter is not subject to jurisdiction of the U.K. courts.

That's good news, but the failure of the U.K. to adequately protect intermediary platforms under UK law raises deep concerns.

It Weakens Courts to be King Canute

It is now painfully clear that the judicial ruling is not stopping the facts about this matter from being spoken and that there is a strong public interest in this gossipy news about very public celebrities. As the British Courts themselves recently observed in a similar case:

"The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures."

Continued insistence on this injunction, and continued efforts to impose liability, run the risk of creating an atmosphere where British court rulings have reduced authority because they are viewed as unrealistic and out of touch with modern technology.

The British courts deserve better and it may fall to the British Parliament to change the ‘super injunction’ law in order to fix this problem.

Once Again Twitter's Policy of Notifying Users is Key

In January, Twitter rightfully received the world's praise for insisting on notifying its users when the U.S. government demanded information about several Twitter users. Now Twitter's policy of notifying users may be triggered again, in the event that they receive appropriate legal process requiring them to identify users who republished the information. EFF has called on other service providers to make the same promise to notify users that Twitter has made, so that if a "super injunction" hits any other service providers, users can take steps to protect themselves.