It’s all over for privacy and the courts can’t legislate under the weight of social comment. So scream the headlines in the wake of the latest failure of the injunction process. It may not however be quite so simple.
The influence of social media on privacy and the law has been evident for some time. I wrote about it in April shortly before the current media storm blew. The Trafigura debacle more than 18 months ago highlighted the significant changes brought about by the dynamics of mainstream media access.
One of the central plinths of the current debate is that Twitter, amongst other social networks, is not a publisher and therefore can not be mediated. That’s true but to to say that Twitter has zero influence on its output is also inaccurate. Look for ‘Giggs’ as a trending topic this morning and it simply wasn’t there. Twitter presumably throttled the API output using the same technique it used to remove Justin Bieber from the trending lists when most users became bored with his omnipresence.
To say there were too many twitterers to pursue in the Giggs or any other case also ignores the fact that every tweet is time coded so it is a simple job to find the first to breach the court order. Schillings and Carter Ruck are staffed by some pretty smart people. The world has changed but it won’t be very long before the courts begin to adapt to the new order. We have some way to go before the diva warms her vocal chords for the final act.