davywavy | I fought the law and the law lost.

I fought the law and the law lost.

In a slack period yesterday afternoon, I spent a half hour or so idly surfing the web acquainting myself with some of the more salacious details of the private lives of a bunch of minor celebrities of whom I'd been previously largely unaware. If it weren't for the whole furore over superinjunctions I wouldn't have bothered doing this or even cared who these people were, but the widespread online civil disobedience - tens, if not hundreds of thousands of people have posted names and details which are legally still redacted - means that anyone at all can access this information and this has brought it to a far wider audience than otherwise would ever have been the case.
The nature of modern communications technology, and the limitations of the law to prosecute either people overseas posting information or even vast numbers of people in this country, means that the superinjuctions are effectively worthless. The law can be - and is - flaunted with utter impunity in this case.

The thing is, this is not a good thing. Junior military officers are taught that they should never give an order which they aren't pretty sure will be obeyed, on the basis that as soon as people start ignoring your authority in one area they will start to think you can be safely ignored in others as well. It's a rule that legislators would do well to remember; if you create legislation which you cannot or will not enforce then as soon as people realise that you can be flaunted it'll start giving them all kinds of ideas about all those other laws as well, and that's not a healthy long term result for the general law-abiding nature of society. In short - if you can't or won't enforce some of your rules, you undermine all your rules as people will naturally assume you're just as weak in other areas as well.

I'm sure there were other cases before, but I first really picked up on this with the hunting ban about ten years ago. Before the ban was passed the police made it pretty clear they considered it unenforceable, and after the ban the number of people involved in hunting actually rose. The number of hunting prosecutions is tiny, and the law is regularly flaunted to this day.
Another good example of unenforceable law is taxation legislation. I'm not sure what the situation is now - I don't doubt it's pretty much the same - but back in days when Gordon Brown was as tax-happy as it gets the law should have been generating about 49% of GDP in tax, but in reality it struggled to bring in more than about 40%*. Why? Because above a certain level people start looking for ways to avoid paying tax and once they've found they can then they do it more. The more legislation there is, the more loopholes there are and the easier it becomes to avoid paying tax above a certain level. Moreover, once it becomes clear you can do it with impunity the entire system becomes undermined and people actively look for more ways to bilk it.

Something I've found when dealing with people who are - let's say - more idealistic and less thoughtful in their politics is that their reaction to anything they don't like is to propose to make it illegal. The Big Issue has a regular feature called 'King for a Day' in which people are asked what they would do if they ran the country and this is pretty much uniformly a list of things that people think should be banned. Similarly

raggedhalo's assertion that he'd make it illegal for people to educate their own children or

hareb_sarap telling me about all the super new laws he'd introduce if he was in power. What none of these proposals ever seem to tackle is what they would do if their laws were ignored or if they didn't have the intended effect, and to me that's the most important part of planning: what do you do in the event of failure? Passing a law isn't a magic wand which makes things you don't like go away, so if the legislation doesn't do what you want for whatever reason what's your plan B? The twitter campaign against superinjunctions is a case in point - the law is powerless and attempts to enforce it just make the process look ridiculous. The only - only - serious proposal for enforcing the superinjunction law is for a few test cases to take place, and this leads to the unedifying prospect of someone who can't be named being arrested for naming someone else who can't be named, tried in secret to prevent details becoming public, and sent to prison for a crime which can't be reported.

That's the sort of law which only David Blunkett could love, and it just isn't going to happen.

The thing is, every time you introduce new levels of complexity into a system you increase the chance of something within the system failing. The amount of tax law trebled between 2000 -2010 but the amount of tax actually raised as a percentage of GDP increased only infinitesimally. In 2009 alone, over 3000 separate new pieces of legislation were introduced to the statute books. I've got ten bob which says 90% of them aren't enforced. Are you going to take a blind bit of notice of them? I'm not.

But hey, at least we all know that the footballer formerly known as JGF can't keep his trousers on.

^{*Insert pithy comments about overspending on unrealistic revenue projections here, blah blah, I've said it before and if you still think Brown had a clue what he was about there's no helping you.}

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In principle superinjunctiosn aren't a terrible idea. I don't care that footballer X has been shagging minor celebrity Y. Its their private life, and unless it actually has an impact on their professional career, or there is legitemate public interest- (MPs campaigning on "back to basics" fathering illegitemate offspring left, right and centre for example), I don't see any justification in splashing it all over the red-tops.

However that's a reason to introduce privacy laws of some sort. Although quite how you make them work is another matter.

(deleted comment)

I don't buy it at all--the very idea that very well paid young men with people chasing after them constantly are going to be able to behave as 'role models' all the time is palpably daft.

I was slightly bothered by the gagging of the girl who wanted to talk about it, but that she allegedly tried to blackmail him over it is equally bad; with Hislop on that though, if a judge thought blackmail was involved, the judge should've called for her arrest.

There are many, many things in life which are a good idea in principle but which simply don't work in practice. Trying to enforce something which doesn't work is damaging.

Like many things it would be nice it if did work, but it doesn't. My question in this situation is: what's the plan B if plan A fails? Superinjunctions have demonstrably failed. As such, what now?

You know what: I think a wedding is a public contract, and that one of the things which makes it work is public disapproval of cheating.

Ban Heat magazine.

Why? People will just read Heat.com which would be hosted in Uhlan Bator.

Plan C. Ban the internet.

You asked for a plan B. You didn't say plan B had to be practical either. ;)

You'll note how ridiculously draconian banning stuff gets very quickly when you start trying to stop people doing stuff.

I was going to go for "nuke the place from orbit its the only way to be sure".

Technically, superinjunctions haven't failed, the only one I' aware of that was broken was the Trafigura case--these are privacy injunctions, which are a different thing, and when legal stuff is being discussed, semantics really matter at times.

There's long been a "right to privacy" accepted under English Common Law, it just was very very vague. The HRA enshrined it as a little less vague and very much there.

Problem is, it appears the idiots in Govt that passed the HRA didn't notice the privacy bit and are surprised by the whole thing, whereas others have thought a proper privacy law of some sort would be a Good Thing anyway.

I'd come up with some way of wording a presumption of privacy. Publish stuff about someone's private life you need a public interest justification. That'd cover everyone, and it'd need to be generally accepted, which, naturally, will be harder.

But there will always be idiots-people complaining that Twitter might possibly give up their contact details in receipt of a court order, etc. Did they even read the terms of service? If you're going to, knowingly, break the law, then check how safe you are doing it, or accept the consequences.

But whatever presumtion is passed, it needs to be fairly simple. Not sure I trust any of our politicos to ever pass a simple law, but...

Actually, now I've thought about this I disagree totally. With the exception of wartime, official secrets and insider trading, I can think of no principle which can be used to justify threatening someone with 5 years inprisonment or fines just for talking about a subject. As such, in principle, superinjunctions are an appalling idea and detrimental to free speech.

I have to say, I'm feeling less certain about 'superinjunctions are bad m'kay' since I found out that one of the superinjunctions which has been breached (allegedly) is that Tony Blair's daughter tried to commit suicide when she was 16.

I do not understand how that is in the private interest to know, and I do see how it could be intensely harmful to a young woman who did not chose to put herself in the public eye at all.

I've also heard it said that the current urge for twitter vigilantes could potentially put trials at risk, with juries hearing things they shouldn't via twitter, it could impact on cases where rape victims or child abuse victims are involved (and are meant to be kept anonymous) or it could put witnesses to some crimes (ie - those in witness protection) at risk.

I don't have a lot of sympathy for Ryan Giggs, admittedly, but I think there are times when it isn't necessarily a good thing to be able to say whatever you want on the internet with no fear of comeback.

I was surprised that people didn't already know about Blair's daughter - I've known about that one since maybe 2005 - 6.
It's like [Name deleted] senior royal's parentage. Everyone knows, it's just that everyone is under normal circumstances too polite to mention it. Superinjunctions brought this into the public eye, not prurience.

1) I note you do not mention the other points I raised.

2) I hadn't heard about Kathryn Blair and having done so, I'm really unconvinced I had to. I'm quite glad there was a press blackout - maybe some people did know, if they read some of the appallingly prurient blogs on the subject, but at least the poor girl didn't have to rebuild her brain under the gaze of press photographers.

Fair enough, I didn't know we were doing the responding to every point thing.

My point is, simply, that it's irrelevant whether I think anonymous twitter vigilianteism is a good or a bad thing. It is going to happen irrespective of my opinions and as such it is sensible to plan for what will happen rather than what is or is not currently legal or what I might like to see happen. Furthermore making it illegal when it's plainly impossible to enforce that law is pointless as doing so undermines the law in other, more enforceable places. As such at least contingency planning for failure is wise in this situation, and this plainly has not been done.

Re: Blair's daughter. You'll note that I haven't - ever - mentioned it before. Given my personal dislike of the man I could have used it as cheap and rather unpleasant ammo, but didn't. Why? Because it's just not on. No prurient blogs from me.
That said, despite the fact I knew about it I didn't even know it was under any sort of injunction, and if it hadn't been I don't think the situation would have been much different. In fact, I think more people know about it as a result of the injunctions than would if it hadn't been verboten. Everyone in Westminster knew years ago but as a general rule respected her privacy because the story was her, not Blair.

There's an argument that perhaps such injunctions could be used in the cases of minors (and there's a long an honourable history of doing just that), in which case she'd've been covered. Certainly this wouldn't have had the same widescale publicity if footballers weren't using the same legal mechanism to cover up their infidelities. Once again, this is indicative of a systemic failure and no planning for the consequences. Coverage of minors would be a better use - there were some interesting comments by one of the facebook founders suggesting that in the future we all might have a name changing day on our 21st birthday so all the stupid things we've done online as teenagers won't crop up when employers google us.

This fellow makes some good points as well: http://blogs.telegraph.co.uk/news/brendanoneill2/100090261/there-is-nothing-heroic-about-using-an-anonymous-twitter-account-to-attack-your-enemies/

I have been thinking about this too much and therefore was poking for more of a response. :)

I do think the link is a sensible one. I also do feel that superinjunctions shouldn't be there so Ryan Giggs doesn't get called out for blatantly screwing around, and I think he's the kind of case that does make it really hard to believe in these injunctions. I do, however, twitch a little at the idea that superinjunctions are, per se, a waste of time or that it is intrinsically unreasonable to assume that someone who breaks the law by breaking an injunction online may face problems from the law. There are a lot of circumstances where I bloody well hope someone would get a slap for breaking an injunction. I do, however, acknowledge that it's hard to get that wound up about the revelation that Hugh Bonneville enjoys the company of kinky hookers, or his right to keep that to himself.

More on this:
Thinking about it, I thik I answered the point to an extent in the original post. It's the thing about junior officers not giving orders they aren't certain will be obeyed. If you issue an injunction about a suicidal teenager, I think it's a reasonable assumption that this will be largely obeyed. If you issue an injunction about a footballer liking things being stuck up their bottom, it's a reasonable assumption that it won't be.

By issuing orders which people perceive as being utter rubbish, you undermine the orders which aren't rubbish. This is precisely what has happened in this case.

I mostly agree. I guess I sort of worry that it's very easy for the people who want to break the injunctions to present a lot of these superinjunctions as being 'absolute rubbish'.

Up until you mentioned it I didn't know Blair had a daughter. Clearly the sensible option is to train everyone to have my level of interest in the lives of celebrities.

You know how people who have terrible body odour never get told they have terrible body odour, and so they keep on smelling bad? And then you start wondering whether you have easily preventable odious qualities that people simply haven't told you about, although you'd much rather they did?

Well the word "incremental" doesn't mean "by a tiny amount"; it just means "increased by an amount", and "increased incrementally" is a painfully gaping tautology. You misused it in the same way in a post about AV, and anyone with a maths or computing background is going to think you don't know what the word means.

Feel completely free to screen or delete this comment, and I trust you'll do the same for me in future.

(deleted comment)

Yeah, okay, I'll edit the piece to that and see if I get pulled up on it.

"Marginally" would be my choice, and is fairly consistent with the technical economics definition as well.

Not at all, I'll leave your comment here and unedited. I'd rather learn than not, and polite corrections are probably the least awful way to do it.

(deleted comment)

That is polite correction where you're concerned, buster.

From a BBC interview with a retiring Oxford Don:

Don: "Up until the age of 25, I believed that 'invective' was a synonym for 'urine'."

BBC: "Why ever would you have thought that?"

Don: "During my childhood, I read many of the Edgar Rice Burroughs 'Tarzan' stories, and in those books, whenever a lion wandered into a clearing, the monkeys would leap into the trees and 'cast streams of invective upon the lion's head.'"

BBC: [long pause] "But, surely sir, you now know the meaning of the word."

Don: "Yes, but I do wonder under what other misapprehensions I continue to labour."

Personally, I was well into my twenties before I discovered "hirsute" wasn't a synonym for "resplendent".

It happens. A teacher at school once explained to me how to use apostrophes and got it completely wrong. They still give me trouble now.

I occasionally go over my Google search history, and it's become painfully apparent to me that I'm completely at the mercy of Google's "Define: [blah]" function. If someone were to muck about with those I'd be ruined.

I only got about five hours sleep last night thanks to next door's baby bellowing it's darling little lung out, and my writing suffers when I'm tired. I had to check the spelling of the word 'fought' whilst writing this as it just didn't look right to my addled brain.

"increased incrementally" is a painfully gaping tautology

See, I didn't know this either, and given I'd have gone into maths if my school hadn't been so awful when I did A levels, I probably ought to.

So keeping it public is good as mor eof us learn--danke.

It's really weird reading one of your pieces on law and politics and agreeing *all* the way through.

I don't see why, I'm right about absolutely everything ever!

Except the correct use of the word 'incremental' and apostrophes give me trouble. But I'm pretty sure those are my only weaknesses.

Well said sir.

There is a kind of bizarre social justice/public interest thing going on with the super-injunctions. I'm pretty sure that there wouldn't be this level of flauting the law if it was in place to prevent something like the identity of an abused child.

I've always felt that 'public interest' and 'interesting to the public' were two different things, but how the hell you define that I have no idea.

I don't think I'd introduce any new laws if I was king for the day (unless you count relaxing some drug laws counts). I'd like to make some radical changes to the prison/benefits system though, although that assumes I have a magical amount of money just lying around. Every non-taxpayer is a potential taxpayer: investment is better than storage.

I've posted a link to "A man for all seasons" about four times in the past twelve months but I think most people don't watch it or just don't understand it but
"Yes, I would give the Devil himself benefit of law for my own safetys sake".
I am resisting the temptation to reach for my soapbox here.

Once you start blurring the edges to suit yourself it all goes to shit - and the british government, on all sides has been doing this consistently for too many years.

David,

(Having fought my way past the advertisements for the last time)

A junior officer very sensibly does not issue an order he fears will not be obeyed. However, ultimately, an honourable officer will have to try it: as in "Russians! the Germans are marching on your homes, we must stop them!" and hope he does not step backward into a barrel and give a Bolshevik the opportunity for a comedy kill.

Likewise, if a Judge is satisfied (they are so Judgemental!) that Tart A has connived with (enormously wealthy and powerful) Supervillain RM, to demand money with menaces from Dick B; he may decide that it is unjust for A and RM to make money from the Mob's prurience...until a Jury (look Democracy! Obi Wan) has had the chace to decide.

Should the fact that the Interwebz anonimity will allow arsesholes' C - Z to spread RM's slime stop a principled decision?

Over to you. This is the price of Democracy (as that paedo Socrates learnt).

D

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I fought the law and the law lost.

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