TECHNOLOGIES OF FREEDOM
With Freedom of Speech, The Technological Genie Is Out of the Bottle
When it comes to freedom of speech in the age of Twitter, for better or worse, the genie is out of the bottle. Controlling information flows on the Internet has always been challenging, but new communications technologies and media platforms make it increasingly difficult for governments to crack down on speech and data dissemination now that the masses are empowered.
The most recent exhibit in the information control follies comes from the United Kingdom, where in the span of just one week the country’s enhanced libel law procedure was rendered a farce. Britain’s so-called “super-injunctions” are privacy or publicity rights on steroids. They allow individuals — typically quite wealthy public figures — to go to court and get an injunction barring publication of sensitive facts by media outlets.
What makes them “super” is the added requirement that media not even mention the fact that the injunction exists. Of course, that’s not so super if one cares about freedom of speech and press rights. According to the U.K. Telegraph, almost 80 such gag orders have been granted by British courts over the past six years.
Manchester United football player Ryan Giggs was recently granted an injunction (although it’s unclear if it was of the “super” variety) in an attempt to cover up details of an extramarital affair. Once word got out that he was the celebrity behind this latest injunction, the news spread like digital mercury across Twitter and the Internet.
While mainstream British media held their tongues fearing a legal backlash, new media gave the people formerly known as the audience an outlet that couldn’t be legally intimidated into silence. A member of the British Parliament, Liberal Democrat John Hemming, named Giggs as the man behind the injunction and made it part of a public record, meaning traditional media were finally free to report it. “With about 75,000 people having named Ryan Giggs on Twitter,” Hemming argued, “it is obviously impracticable to imprison them all.”
Indeed, while the principled objections to super-injunctions are numerous, as MP Hemming suggests, the practical enforcement questions are equally compelling. Just how far can law go to restrict information flows? Regulation is not costless. The free speech burdens are not quantifiable, but litigation — or even the threat thereof — could cost organizations and individuals dearly.
Setting up a Twitter account or other online accounts is cheap, easy, and can be done anonymously. Even if the courts demand online operators hand over information on their users, the trail could go dead fairly quickly. Policymakers might demand everyone be fully credentialed before using Twitter or similar sites, but it would just drive speech to other platforms.
Would a ban on all anonymous online speech be next? That would be extreme and unfortunate. “Will the private life of a footballer really mark the beginning of a new attempt to seize control of the internet?” asks Quentin Bargate, of the British law firm Bargate Murray. “Will cases against Twitter in England signal a free for all that might end up crippling free speech for the sake of the reputations of the rich and famous?”
Let’s hope not. The good news is that the U.K.’s super-injunction shenanigans won’t have much effect on U.S. tech companies or consumers. Americans have three layers of protection from such foreign speech-control regimes. Most obviously, the First Amendment to the U.S. Constitution continues to serve as America’s preeminent bulwark against censorship efforts of all sorts.
Second, as the Net was just dawning in 1996, the U.S. wisely adopted 47 U.S.C. §230, otherwise known as “Section 230,” which shields online operators from liability for information users post on their networks. By immunizing intermediaries from punishing liability, Sec. 230 has sparked an explosion of online speech and human interaction.
Finally, last August, President Obama signed the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act to shield Americans from “libel tourism,” or forum-shopping by foreign parties looking for hospitable jurisdictions in which to bring suit for defamation. The SPEECH Act makes any such judgments largely unenforceable in the U.S.
The bad news is that excessive libel and privacy regulatory regimes in foreign countries can still create huge headaches for companies doing business overseas. Surprisingly, Twitter says it is still moving forward with plans to open a U.K. office even though any employees or assets based there could become fair game for litigation or regulation.
Google and Yahoo executives have faced similar problems in separate cases in Europe over the past decade. When foreign governments or courts realize they can’t reach a company based in the U.S., they often threaten the firm’s people or property based on their own soil. Expect more conflicts along those lines in the future.
Practically speaking, however, governments are fighting a rearguard action in the war to control information flows. Some regulation is possible at the margin, but only at great cost, both in economic and social terms.
Barring extreme steps — such as entirely blocking access to open communications platforms and digital technologies — governments will have to come to grips with the fact that the beauty of the Information Age is also its curse: the information will flow.