Much has been written about what the Twitter leaks mean for the future of privacy law. It seems a safe bet that there will be a period of ebb and flow, and something will happen to make injunctions appear effective again for a while – perhaps following the attorney general’s warning today that Twitter users who breach injunctions may be prosecuted for contempt. But there can be no doubt that they are on the way out.
Whatever parliament finally says, they have fallen into disrepute – and may even have some way further to fall. The internet is the enemy of secrecy, even when secrecy is a good thing, and that is pretty much the end of that particular story.
When you consider that the major brands driving these developments – Google, Facebook, and Twitter – are only twelve, seven, and five years old respectively, it becomes clear that we are just at the start of this revolution. There’s plenty more to come – and whatever innovation is next, it will be of no assistance to those wanting to manage their media relations on the basis of a court order.
But while the debate so far has been of particular relevance to media lawyers, the emasculation of injunctions raises a broader point for all members of the profession. The forces undermining injunctions – technological developments teamed with people’s natural curiosity and a still-vibrant mainstream media – also mean that almost any legal situation can give rise to publicity that can permanently affect someone’s reputation.
Inquests, commercial disputes, high profile divorces, employment tribunals – virtually any situation where there is disagreement or blame provides the opportunity for interesting stories, which in turn inform what is said in social media. Not that long ago, the threat of bad publicity would have been dismissed simply as ‘tomorrow’s fish and chip paper’.
No more. Now it is a serious business, and ordinary people can face pressures that are indistinguishable from those faced by celebrities: how to manage voracious media appetites; how to influence social media; how to keep a low profile; how to protect a reputation and get a message across in a world where one nugget of information can give rise to a million instant judgments online.
It is not enough for a lawyer to win a case potentially weeks after the media — along with millions of individual men and women publishing their thoughts, photos and observations online – have made up their minds about the client.
The legal process is not immune to the pressure for greater transparency that has affected every other walk of life. The challenge for law firms is to anticipate how client demands will change as a result of these seismic changes. In a world of almost limitless scrutiny, people will expect their legal advisers to have ways of protecting them.
Without the quick fix of an injunction, lawyers will need to become far more media savvy. Success here requires forward planning, good relations with journalists, and the ability to influence matters before they are reported, not once they are in the public domain.
And if things are reported in a disagreeable way, there are still options – although suing users of Twitter, as a certain footballer is reported to be doing, is perhaps not the best one.