Twit, twittle, twit. The long view of e-disclosure

By | 23rd June 2011

There is a view often expressed that the law is failing to keep up with developments in technology. You only have to read the papers (if anyone still does) or read what people are saying on a myriad of social networking sites of which Facebook and Twitter are the most often quoted.

Occasionally the law comes up against someone who is perceived by some to be a particularly persistent “offender”. That person writes a series of articles, the subject of which then seeks to prevent disclosure of the material. The matter comes to court and then the unexpected (or should I say unintended?) happens. The trial does not go as expected and the whole point of the court case is lost. The person who attempted to prevent disclosure has a considerable amount of egg on his/her face and the information they wished to keep secret is more widely disseminated than they could ever have feared.

Does this sound familiar? If so, you are probably thinking footballers playing away, super injunctions and tabloids screaming with names, pictures and luridly illustrated stories.

In earlier centuries, satirists and radicals regularly lampooned the Establishment, whether the Royal Family, the landowners or merely those perceived to be in power. Sometimes, the authorities reacted swiftly, even vindictively and at other times they were more relaxed. Anyone who is familiar with the extraordinary Hogarth cartoons of the period will be thankful that they were not banned and/or destroyed.

In 1817, satirist William Hone faced three separate trials (on consecutive days) for publishing pamphlets ridiculing the habits of the people in power and was conspicuously successful in distributing the pamphlets widely round the country at a time when communications were considerably more difficult and less instantaneous than today. What was published in London one day was read in Liverpool or Manchester the next.

The authorities were furious, alleging that the articles were harmful to public morals and even that they tended to bring religion into contempt. The real motives of the prosecutions were political because of the way they portrayed the behaviour of those in authority. Although the judges were said to be biased against Hone, the jury on each of the three occasions found him not guilty amid huge public celebrations amongst the crowd which had gathered outside the Guildhall during the trials. There was even a public collection for him!

Eat your hearts out Trafigura, Ryan Giggs and Andrew Marr!

I was reminded of this story by the BBC’s Jonathan Freedland who opened a new series of “The Long View” earlier this week with a look at the world of super injunctions, so thank you to the BBC for piquing my curiosity once more on this by now well worn subject.

You would be mistaken therefore if you thought that the problems caused by Twitter and the like were a new phenomenon and a product of the 21st century.

There is nothing new under the sun, even down to the terminology.  Following his acquittal, Hone published a song illustrated by his friend and collaborator George Cruikshank. The hand-coloured frontispiece represents a farmyard with the different characters engaged in the trial as domestic birds, notably Lord Ellenborough, Edmund Law, the Lord Chief Justice as a turkey and William Hone as a teasing and twittering tom-tit:

Great Gobble Gobble Gobble, and Twit Twittle Twit, or Law, Versus Common Sense, Being a twitting Report of successive Attacks on a Tom Tit, his stout Defences & final Victory. A New Song, With Original Music By Lay Logic, Esq’re, Student in the Law of Libel.

Law versus Common Sense indeed! The eponymous Lord Chief Justice directed the jury to find a verdict of guilty, and their acquittal of Hone is generally said to have hastened his death, a year later in December 1818.

So, Twitter is nothing new and indeed was alive and well in the 19th century!

What is certain in all this today is that the law and the authorities are as little able to keep up with technological developments as they were in the 19th century. No amount of televising of the proceedings of the Supreme Court provided by Sky, of all companies, nor interventions by ministers warning people not to breach injunctions by using Twitter (after MPs have taken advantage of Parliamentary privilege to name the subject of an injunction whose very existence the authorities have decreed we should not know about) will make it any better.

What seems to be reasonably clear is that in history as well as in the law and, dare I say it, in the realms of technology, there is little new under the sun. Of course there are new developments and new incidents and experiences but what is really new is the way we all react to them.

I have no influence on how our politicians and others in authority may come to deal with an insistent public which is determined to “know” about the matters which others would prefer they did not. I have, however, a small influence on how lawyers may react to changes in technology in the area of disclosure. In a small way, I believe that I and others like me are winning the battle to persuade lawyers to overcome their innate fear of new technology and to harness it to ensure a more cost effective and proportionate result for their clients.

After all, you have to take the Long View. It’s the Law and Commonsense!


Listen to The Long View in BBC iPlayer

Photo credit: Cruikshank’s cover illustration for the sheet music of “Great Gobble Gobble… ” from the Princeton University Library collection.