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Tuesday, 17 May 2011

How the press in Norway first defeated their own injunctions, then one of ours

Possibly the worst example of Freedom
of Information Act redaction?
Nearly 2 years ago I became, for a short time, a reader of the website of Norwegian state broadcaster NRK. I don't speak a word of Norwegian, but that didn't matter, as several articles were published in English due to heavy demand from UK readers.

The reason for my interest in overseas news was an injunction from a UK court; and the reason the Norwegian press were able to fill the gap dated back to a completely separate matter in 2005 that led to the injunction system in Norway being rendered mostly defunct.

In 2009 the word Trafigura set Twitter alight.  I was blogging under an alias at the time, and for reasons relating to Trafigura I'd rather not reveal my nom de plume for my (now deleted) past bloggage.

I'm also not going to go into any more details about Trafigura. Call me a scaredy cat but I hear from fellow bloggers that Trafigura's lawyers are still active.  The details of what Trafigura are alleged to have done is irrelevant to the rest of this post, and I firmly believe one must be careful to pick and choose one's battles. Go Google.

Back to 2005, according to NRK's lawyer writing in journalism.co.uk, the chief editor of Norway's equivalent of the BBC was dealing with a different matter.  An injunction relating to a complex issue in which a police informant's privacy was at stake, but the conduct of the Norwegian police was also under question, led to the dramatic downfall of injunctions in Norway.

NRK's editor took the decision to publish and be damned. He was subsequently prosecuted for the criminal act of breaching a court injunction, but cleared on appeal to the Norwegian Supreme Court, which ruled the injunction was a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

Possibly as a direct result of the actions of one editor in 2005 I was able to read information on the internet prohibited by law in the UK in 2009.

Two things are absurd here: (1) the UK is also a signatory to the very same European Convention on Human Rights; and, (2) the internet is global - if not Norway, then surely at some point a journalist in some other jurisdiction would be likely to publish the information prohibited by UK injunction.

Whilst I don't give a toss about the sex lives of celebrities, and I do feel strongly that personal privacy rights need to be strengthened and respected, the injunction (or super-injunction) is not the right way to force a change in UK attitudes towards privacy.

Often when there's no clear right answer we're left to consider the least worst option. A judge - often sitting in secret session - having the ability to prevent the UK press from publishing something is probably the greater evil.  Press restraint has the potential to allow serious wrongdoing to go unreported; the potential to do more damage to society than relinquishing some rights of some individuals to protect their privacy through injunction.

Privacy invasion is wrong.  But there are better ways a civilised, open and democratic society can achieve the same aim.  Social norms are effective are preventing antisocial behaviour - it's the reason the majority keep our gardens in trim!

Granted, it's a bit more than keeping a neat hedge, but we can punish those who invade privacy in the same way we punish other criminals, after the fact; just as Clive Goodman and Glenn Mulcaire were punished for their invasion in the News of the World phone hacking saga.

An injunction doesn't deter the initial wrongdoing - it just attempts to put some limit on the publication of information once it has already reached the hands of numerous individuals.  There's nothing punitive about being the recipient of an injunction that would stop e.g. the editor of a national tabloid trying to obtain similar garbage for next Sunday's paper.

Information isn't the real enemy, it's just a by-product.

"But you can't put the genie back in the bottle" claim supporters of injunctions, in reference to the fact that once information has been published, it's impossible to retract.

Look at this another way.  Most of our laws try and prevent harm, but in what other area does the prevention of harm become so important that other human rights are sacrificed entirely?

The system of injunctions effectively says the privacy rights of individuals trump freedom of the press on the word of a solitary judge sitting in secret.  Furthermore, in the case of a super-injunction, it's impossible for any other party (e.g. a newspaper who can afford) to challenge the injunction, as the respondent is sworn to secrecy.

In the UK at least we treat other sources of potential harm differently.  A convicted killer is not executed; nor, in most cases, are they given whole life terms.  But several UK studies have concluded that a convicted killer is at a higher risk of re-offending than an average person.

In terms of "putting the genie back in the bottle" surely the ending of a human life is the ultimate irreversible crime.

Yet we let convicted killers free from prison on most days throughout the year.  And rightly so.  We do this because human rights together with the rule of law is more important than the increased risk to human life.  We choose not to kill or lock-up killers indefinitely solely because they might kill again.

On one hand we're prepared to risk the ultimate irreversible act, a killer might well kill again; yet on the other we choose to make information secret just because, in a discrete subset of cases, information might be released that might make a person or an organisation's life a bit more difficult.

Information is clearly powerful, but I can't help feel that we're overstating the potential damage in many instances; and we're unfairly beating up the new kid in town - social websites - in the process.

Those calling for certain injunction-busting tweets to be blocked must surely realise a logical conclusion: that certain pages from overseas news organisations like NRK would also have to be blocked in cases like the Trafigura debacle.  Isn't this exactly the sort of activity we criticise China for - blocking e.g. the UK's state broadcaster, the BBC?

We shouldn't be willing to put democracy at risk by censoring the information after it's become available.  We should focus on dissuading invasive practices in the first place.

@ JamesFirth

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