Social Media is not Super-injunction Kryptonite

The recent outburst of super-injunction controversy raises major concerns about privacy. Things got out of control when Twitter users – allegedly including Piers Morgan, Boy George, Dom Joly and journalist Toby Young - made details of celebrities who had achieved super-injunctions public. It seems the almighty mob of social media users, with its worldwide status and arrogant sense of unrestricted freedom, is rebelliously challenging the English judicial system.


The purpose of a super-injunction is to guarantee a person absolute confidentiality regarding strictly private matters. This means that individuals and the collective media are banned from publishing anything about the applicant that is deemed private, and also prohibits any reference to the existence of the injunction itself.

However, social networking sites - which have made it easy for people to make public announcements and liberally voice personal opinions - are making the enforcement of these super-injunctions extremely difficult. It was initially thought impossible to take any action against the Twitter users who tweeted and re-tweeted defamatory announcements regarding super-injunctions, but it is wrong for social media users to be able to effortlessly sidestep the highly restrictive constraints imposed on the traditional media. Those individuals who breach court orders should pay damages just as any media company should. Thankfully this has now been recognised by Attorney General Dominic Grieve who warned that anyone who was under the impression that modern methods of communication could allow them to “act with impunity” may be in for “a rude shock”.

The whole nature of the super-injunction controversy raises worrying issues. It seems people are becoming increasingly obsessed with knowing every intimate detail of both their friends’ and public figures’ lives, irrespective of whether it really concerns or affects them in any way. Fuelled by the gossip culture, rather than people having a right to privacy, there is now a strong sense that people are demanding a right to be informed of everyone else’s private matters.

Journalists and newspapers have spoken out against super-injunctions, protesting that the freedom of the media and their freedom of speech are being compromised and that as a result, they are being prevented from serving the so-called public interest. However, claiming that they are being repressed by legally approved sanctions regarding a public figure’s private life is simply absurd. The media is an incredibly powerful entity which can greatly influence public opinion in both a constructive and destructive manner, and this is a fact of which they are well aware. Their primary interest – and one that may explain their objections to super-injunctions - is to make money and it doesn’t take a genius to tell you that revealing scandal and private matters sells newspapers and boosts circulation, which sells advertising.

MP’s who have revealed details of super-injunctions in Parliament have also been in the firing line for abusing their parliamentary privilege, with one incident being described by Labour MP Mr Cryer as “an act of gross opportunism by a politician on an ego trip." Just as is the case with the media, there is certainly every reason to be suspicious of the motivation behind these MP’s announcements because they too have the selfish interests of both their own and their party’s popularity in mind.

However, privacy is not an issue to be taken lightly and Article 8 of the European Convention on Human Rights and the 1998 Human Rights Act offers protection for one's "private and family life, his home and his correspondence" that is considered – importantly - "necessary in a democratic society".

Celebrities deserve a private life as much as everyone else. It is not a logical consequence that someone who has entered into the public eye for being a talented sportsman, singer or actor should be stripped of the right to respect of personal privacy. More so, knowing their personal life is definitely not “necessary in a democratic society". There is no doubt that those who dared to flout the law via Twitter would be horrified at the thought of details of their own private affairs being callously splashed over the Internet. So maybe this should be something to consider before crossing into the dangerous territory of passing judgement and publicly humiliating others.

Effectively managing social media is clearly complex but the premise is simple: people should not consciously breach the law. Serious thought on how to address privacy issues in the world of modern technology is necessary and Prime Minister David Cameron conceded to this view commenting that, “The law and the practice has got to catch up with how people consume media today.”

As a corollary, thought must also be given to the merits of particular super-injunctions. This is why new guidelines have been issued following a report published by Lord Neuberger on 19th May 2011. In cases where they are justifiable and short-term secrecy is “strictly necessary” – such as protecting the name of a juvenile who is accused of a crime - they should be upheld and not made a mockery by social networking sites.

Moreover, information posted on the Internet is often false. This can result in raising unnecessary public concern and, in the case of super injunctions, lead to innocent celebrities being named and shamed for injunctions that they didn’t apply for. One example of this involved Jemima Khan being alleged of taking out a super-injunction to prevent the publication of intimate photos of her with Jeremy Clarkson. The mother of two denied the claims and expressed anger towards those responsible saying, “I hope the people who made this story up realise that my sons will be bullied at school because of it. Plus I’m getting vile hate tweets.”

The very nature of social media renders it extremely difficult to manage, but as Steven Barnett, professor of communications at the University of Westminster said: "Those who deliberately and systematically attempt to undermine the decisions of the courts should be sought out and brought to justice."

PR Controversy Fuels Seven Figure Contracts

If the media thinks it has struck a blow to the large public relations companies recently exposed as indulging in arguably unethical activities, then the Fourth Estate sorely needs a reality check.

The row over global PR companies cooperating with controversial foreign Governments has given these agencies free – and potentially extremely lucrative – publicity, because the truth is that controversial PR can be a goldmine for PR companies willing to take on ethically questionable clients.

“Google-gate” – in which Burson-Marsteller were hired by Facebook allegedly to pitch negative stories about Google to the US media – focused on Burson-Marsteller’s tactics to disparage the search and digital media company. The company has not stayed away from controversial clients previously, and allegedly worked with the Nigerian government after claims of genocide in the Nigerian Civil War and the Argentine junta following the disappearance of 35,000 civilians. Putting a positive spin on these types of issues is clearly not in the same stratosphere of PR as promoting the latest bronzer or lip gloss to Cosmo.

Burson-Marsteller isn’t the only agency to have taken on controversial clients. Bell Pottinger has been harshly criticised by protestors for its decision to work for the Bahrain government following the recent clashes between government forces and anti-regime demonstrators. The contract was previously held by Weber-Shandwick and is, according to PR Week, “understood to be worth a seven-figure sum annually.”

Television presenter and “renowned PR expert” Lauren Laverne laid into major PR companies on Channel 4’s damp squib of a satire show 10 O’Clock Live. Those bearing her brutal brunt included Bell Pottinger, Brown Lloyd James for its alleged work with Colonel Gadaffi, and Burson-Marsteller for its work in supposedly assisting a number of dictatorial regimes.

Lord Bell has defended his company, saying: “The implication that in some way my company and I damage the reputation of the industry is absurd,” adding that his company “abides by all the regulations of a public company.” Regarding the contract in Bahrain, he reiterated Bell Pottinger’s role: “We work for the Economic Development board. Whatever happens, the economy has got to grow. We're nothing to do with the constitution; we're nothing to do with Sunnis and Shiites.”

2011 has already thrown up some monumental news stories, not least the anti-regime uprisings in Northern Africa and the Middle East. With increasing calls for political reform, governments are more desperate than ever for some of the most skilled PR experts to protect their reputations, and to spin what has been called the “unspinnable”.

Google-gate merely served as a reminder of the nature of competitive business in the PR industry. Steve Earl, MD of Speed Communications, argued that the primary thing that Burson-Marsteller got wrong was its “amateur and clumsy” methods of smearing, suggesting the PR industry should just “admit” such practices “rather than getting all high and mighty”.

Yet this bad publicity has had negligible effect on these firms. There have been no headlines of clients cancelling their contracts since the surge of focus on PR agencies’ ethics. One may ask whether clients should be comfortable - ethically - funding a company that works for clients that are morally questionable. Supplier selection is a key element for an effective corporate social responsibility strategy. Employees for such companies may well ask themselves whether they feel comfortable working on such accounts. No doubt many will relish playing the Prince or Princess of Darkness role.

Yet what many clients – especially controversial clients – really want is a firm who are happy to be morally ambiguous. While Bell Pottinger has suspended its contract in Bahrain due to a ‘three-month period of emergency rule’, it has announced plans to revisit the contract after this period. It'll be interesting to see whether the policies of whatever regime emerges after the three month period will have an impact on BM deciding to continue the work

If a lack of ethical behavior has become integral to successful PR businesses we have to question whether clients actually care. While a company may not condone the practices of a PR agency, as long as they get some good publicity - or their competitors get bad publicity in the Google-gate case - they may not be too worried about the means that produce their desired ends. As a result PR consultancies that are willing to cross ethical boundaries for a fee will continue to win the most lucrative contracts in the world.