Today Crikey features an article by Bernard Keane that would be in contempt of court were it published in the United Kingdom, relating to an extraordinary, and legally novel, form of “superinjunction” that has blocked reporting of a case arising from a financial dispute within the Lumley family. Material relating to the case is freely available online, even if British media outlets are not permitted to say where.
The regular use of superinjunctions to block reporting of inconvenient, damaging or occasionally even simply embarrassing material by companies and prominent individuals has reached scandalous proportions in the United Kingdom, to the extent that MPs are using Parliamentary privilege to breach them.
The merits or otherwise of the individual cases are not the issue here; the demand for court-sanctioned censorship, and the willingness of British judges to grant it, is.
But the broader problem for judges and lawyers, whether in Britain or anywhere else, is that the legal system’s traditional obsession with controlling information about cases before it is now fundamentally at odds with the digital world.
We have seen this pattern played out repeatedly as music executives, movie studios and media proprietors rail against the internet and swear they will use all means available to them to restore the control they exercised over information before the internet arrived to make their lives difficult. In all cases, they have failed.
And more recently we have seen it played out by politicians and the foreign policy establishment, railing against WikiLeaks for releasing US Government material. They, too, have failed. Critics insist this is an argument about what should be, about the morality of WikiLeaks releasing cables, about the morality of downloading audio-visual content — even, according to Australian retailers, about patriotism.
But the nature of information, and the relationship between those who have it, and those who want it, will never be the same again. Industries, courts and governments are now struggling to deal with the widening gap between what they should think should be, and what is. The sooner they understand how fundamentally the world has changed, the smaller that gap will become.