24 May 2011

Of Superinjunctions, Free Speech And Privacy Protection


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Image by Sara Simmons on Flickr
5746811723_c6ee3aa242_oYou will most probably recognise his face if you are a football fan.
This guy must have had a harsh time during the last couple of weeks.
Actually, he must have gone through hell.
What he has reportedly done may be controversial and stay at odds with morality, but this is not the subject of the article you are reading.
It is about his right to private life.

My point is that since the man on the image has not committed any wrong, no public interest should qualify to deprive him of a right provided for by Article 8 of the European Convention on Human Rights.
The forgoing is not to be understood as the advocacy towards a single individual. It is the advocacy towards the right of private life par excellence.

Want to read more? Good,

Let’s Kick It!

Allegedly, the man on the image has had an affair with a model and ex BigBrother contestant. However, after the model had contemplated to disclose their relationship, he managed to obtain a

Superinjunction

(aka gagging order) to prevent potentially embarrassing details about his private life being published.
What you have to know about superinjunctions is that they prevent anyone from publishing information which is said to be confidential or private about the applicant. That not enough, superinjunctions prevent anyone from reporting that they even exist.

The English High Court granted the order.

Nevertheless, the Scottish Sunday Herald

Dared To Publish

footballer’s image claiming that it has no obligations under an English injunction and if anyone wants to prevent the whole of the British media from reporting on a story, then they will need to get separate injunctions in all jurisdictions.

The interesting thing preceding the publication in Scotland is that, as soon as Twitter users had started to tattle about the alleged affair of the footballer, he managed to obtain a gagging order also against Twitter.
Despite any deliberations as to whether Twitter is subject to the jurisdiction of English courts, the superinjunction flopped in meeting its purpose. It not only failed in preventing the spread of information on the microblogging platform, it bestowed Twitter an unprecedented increase in traffic instead. Every user interested in the matter was tweeting said footballer’s name.

5719332110_b51182ab3a_z

Undoubtedly, this teaches us that

Superinjunctions Have Only Limited Effect

when it comes to Web 2.0 and social media.

The reactions could not come quickly enough.
Lord Chief Justice Judge lamented that “modern technology is totally out of control”. David Cameron added “It’s not fair on the newspapers if all the social media can report this and the newspapers can’t” and announced that “the government considers to legislate on privacy issues in order to catch up with the advent of social media”.

Would you support such legislation efforts?
I would.
I could accept minor limitations and would easily survive the lack of knowledge about whom a celebrity allegedly slept with. Because I know that such a minor concession of the society as a whole, would end up saving said celebrity’s private life.

Filtering Twitter?

I spent a couple of hours on Twitter this Sunday and read as many messages marked with a #Superinjunction hashtag as possible.
My impression was not that the users celebrated the victory of free speechover gagging and censorship. No, their overall message to the footballer sort of read “You think you can hide behind a superinjunction? You cannot, it simply does not work on Twitter”. They seemed happy to have tracked him down. That had nothing to do with free speech, that was hate speech.

Besides, it was in a clear breach with the superinjunction, of which everybody on Twitter already knew.

I delayed the publication of this article, because today I had a little chat with Jane Lambert on Twitter. There she expressed her concern as to whether a foreign social network should be allowed to operate in the jurisdiction of England and Wales if it is in breach of a fundamental right granted by the European Convention On Human Rights and cannot prevent flouting of an English court order.

She opined that networks should develop filtering technologies, but should deploy them only sparingly in democratic societies.

What do you think?

26 May 2010

Will Ireland eventually overthrow data retention?


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The Four Courts Dublinphoto © 2008 William Murphy | more info (via: Wylio)

There has not been much discussion in the aftermath of the German Constitutional Court’s ruling on data retention and the matter somehow started to collect legal dust. The recent Irish involvement, however, could cause the necessary aeration and preserve the issue from getting buried in oblivion.

Digital Rights Ireland, a non-governmental organization formed as a limited liability company under the Irish Companies Act, brought proceedings before the Irish High Court against the Minister for Communication, Marine and Natural Resource, the Minister for Justice, Equality and Law Reform, the Commissioner of An Garda Siochana, Ireland and the Attorney General because of latter authorities’ breaches against rights provided for by Irish statutes and Constitution as well as by European legislation. Claimant’s proceedings were triggered by Minister for Public Enterprise’s direction, issued in 2002, to the telecommunications providers in Ireland to retain data generated by customers of the telecommunications providers, purportedly in compliance with Section 110 (1) of the Postal and Telecommunications Services Act 1983. This direction was addressed by the Data Protection Commissioner who then threatened said Minister with the issuance of judicial review proceedings to challenge the validity of any and all such directions.

The response of the Irish Government was to pass the Criminal Justice (Terrorist Offences) Act 2005, and specifically the incorporation therein of the provisions of Part 7 thereof. Under that part of the Act, the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both.

This is also what claimant is combatting. They have asked the High Court to refer the matter to the European Court of Justice (ECJ). The questions the ECJ needs to deal with all relate to the validity of Directive 24/2006, in particular with rights under the EU and EC Treaties, the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR). The High Court, in its ruling, granted this motion of claimant.

It is somewhat surprising that another “Irish issue” will land before the ECJ in less than a year following ECJ’s ruling agaisnt Ireland in the Case C·301/06. In the latter, the ECJ found that Art 95 of the EC Treaty represented a sound fundament for the enactment of the Directive 24/2006 since it was apparent that differences between national rules adopted for the retention of data were liable to have a foreseeable direct impact on the functioning of the internal market which would become more serious over time.

However, following the debates in Bulgaria, Romania and Germany it was high time to have the ECJ rule on data retention’s – this time hopefully – not only procedural, but also material aspects. In a somewhat best case for the preservation of our all’s digital rights the ECJ might find against the Directive.

The hope, as is well-known, springs eternal – so let us hope the best.

 

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