As an institution: on injunctions

Last week we at the Realm addressed the issue of the so-called super injunctions pertaining to limitations made upon the media in the UK. I think within a day or two of the post, a Member of Parliament (John Hemming, Liberal Democrat) using a ceremonial priviledge of breaking the law without retribution had named offending individual, which meant by some legal digression (I’m not the law expert in the family), the media were allowed to mention that the MP had mentioned Ryan Giggs one of the offending individuals whose injunction became referred to as ‘Britain’s worst kept secret’.

Some discussion came to the pros and cons of this MP’s decision. The issue is whether this was an abuse or apt use of Parliamentary priviledge. On the con side, this is a most frivolous affair, to give such public attention in the Parliament to the activities of an entertainment figure is the definition of abusing a serious priviledge. A more nuanced position is to say that there is a case for media outlets to observe a discretionary removal of certain news stories and to break such a legal mandate on any issue is to undermine the institution and merits of such discretionary measures. I will go into this latter point in a moment.

The ‘pro’ position for Mr. Hemming’s decision is that this is an issue not only of public interest because it raises the old discussion of the freedom of the press, it is also an untenable injunction because so many people knew about it and social media cannot easily be controlled. There was the additional suggestion that the representative of the party who imposed the injunction would sue, essentially, the internet (or more specifically, some 70+ thousand people) for voiding the injunction. One might say that this would be a good enough reason to break this injunction, on the basis that it is untenable and it undermines the institution of the judicial and the legislative powers of the land.

[Lemma: It is a fair point to say that the role of social media must be included in a comprehensive legal system, considering the role it has had in the now-titled ‘Arab Spring’, as well as this injunction affair. As a semi-serious, semi-joke point, I suspect that religious leaders of varying faiths are soon going to have to decide whether it is permissable to engage in social media, or the extent and depth of activity within it. Some phenomena are so new and unique that it takes a while to really come to terms with its impact. ]

The ‘disapproval’ camp for Hemming’s flouting of the injunction would say that the institution of legitimate media enforces certain kinds of privacy. Imagine if there were a news story that was going to be issued about the mental health issue of a public figure, or a private medical dilemma that somehow press outlets wanted to make a story out of, for instance if it involved a very serious and personal decision. There is a legitimate case for the parties concerned to make a request to the Press Complaints body to ask for a discretionary media block. This not only is an option for many parties, it is in fact enforced on a daily basis. There are various grounds in which such a media block can be enforced, stories may not be of the public interest and of extreme personal concern, stories pertaining to personal tragedies (especially those not relating to people in the public eye) may bring undue attention to the parties and thus excascerbate their problems. There must be a space for interests such as these.

I am reminded of Kant’s notion of morality in this specific instance. When we enforce or legislate a rule, its value is only accorded as to how we may follow it. If no one follows a rule, it is untenable, and we may say that rule following as an institution may be undermined (if such a rule is serious). The suggestion that the party to the injunction may prosecute many of the people on social media sites, which would lead to a forcible outing of usernames, on such a level of thousands of people makes such a injunction ruling untenable. Denning’s decision as possibly an intended consequence by him, will accelerate the process of making a more comprehensive system in place to the status quo. Holding to a law, like the institution of promise-keeping, is worthwhile insofar as it can be upheld.



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