We live in an age where it is tempting to ascribe magical powers to the crowd. When thousands of Egyptians begin their revolution by declaring We Are All Khaled Said, it's impossible not to be moved by the binding-together offered by online social media.
But what are we to make of the 75,000 Twitter users who uttered the name of Ryan Giggs? Are they taking an unbeatable stand for transparency, or merely flattering their own gossip about a wealthy footballer who shagged a buxom reality TV star?
There was really only going to be one consequence of Giggs' lawyers bringing a lawsuit against "Twitter Inc and persons unknown" in an attempt to enforce an earlier ruling enjoining the press from reporting on his affair with Imogen Thomas. British traffic to Twitter spiked as tens of thousands of users checked in to see who the player was.
Last Monday, the Liberal Democrat MP John Hemming cleared the way for English news media to name Giggs by dropping his name under Parliamentary privilege, declaring "Mr Speaker, With about 75,000 people having named Ryan Giggs on Twitter it is impractical to imprison them all ..."
News stories naming Giggs were online within minutes. With Hemming's assistance, Twitter had done what The Sun and its lawyers could not. Hemming himself is an odd character: among other things, he has gleefully boasted of his own multiple extramarital affairs. In 2005, he brought a suit against Birmingham social services after social workers tried to put the child he fathered with one mistress on an at-risk register. In February, Hemming's wife was sent to trial on a charge of stealing a cat from the home of the same mistress.
Since Hemming dropped the G-bomb in the house, things have got really weird. Photographers staking out Giggs' family home and ringing the doorbell were set upon by a group of masked men who leapt out of a van. Thomas -- who has previously been acsused of planning to sell the story of her fling with Giggs to a tabloid -- has received what sounds a lot like a death threat.
The news of Giggs and his superinjunction (it wasn't -- just an injunction) had already been drifting around on sites like this one. The site is called Why We Protest, and the protest is less about where Giggs put his penis than the use of global gagging orders. When Twitter can potentially be forced to give up the identities of users by expensive celebrity lawyers, it's impossible not to feel the same qualms.
But Rupert Murdoch's newspapers have expensive lawyers too. One of those papers hacked phone messages to intrude on the privacy of thousands of people. However much they might protest, they are not necessarily the friends of a civilised society.
The American authors of the new book Offensive Internet: Speech, Privacy and Regulation suggest it is time for a rethink about the abuses permitted by untrammeled speech on the internet But in his review in The Observer, Peter Preston notes the pragmatic view of one of the book's authors, Professor Geoffrey R Stone, editor of the Supreme Court Review:
His hugely influential conclusion deserves to be there at the top of the evidence bundle as our parliament's new Commons and Lords committee meets to find something sustainable in a world where even the prime minister thinks current privacy defences unsustainable. "Just as the law can no longer effectively deal with obscenity because of social and technological change, so too can it no longer deal with non-newsworthy invasions of privacy." The First Amendment plus technical change mean that, "for all practical purposes", the defences of privacy "have been gobbled up completely. To argue otherwise is simply to tilt at windmills".
And yet British Prime Minister David Cameron has declared his intention to seek a Parliamentary fix for unsustainable privacy laws.
Here, as Toby Manhire has been writing on The Listener website, our own Twitter troubles lately revolve around the possibility that an indiscreet tweet on election day could land someone with a criminal prosecution for attempting to influence the vote -- and a $20,000 fine.
But what say 10,000 New Zealand Twitter users wrote flagrantly infringing messages? Or even the same flagrantly infringing message? Who do you charge there? The Electoral Commission is talking tough (see the update at the bottom of Toby's blog post), but exactly what would it do in the face of mass disobedience?
The issue here isn't Twitter itself, except in that it is one platform on which speech can propagate with blinding speed -- much, much faster than the law itself might move. Sometimes we applaud that -- when Twitter users breached the vile superinjunction secured by the even more vile oil trader Trafigura, it felt that a great public justice had been done -- and sometimes we could be forgiven for wondering where we're heading.
So ... that's what we'll be talking about on Media7 this week, with Toby Manhire, media lawyer Tracey Walker and reputation manager Glenda Hughes.
If you'd like to join us for Wednesday evening's recording, we'll need you to come to the Victoria Street entrance of TVNZ between 5.15 and 5.40pm. Do try and drop me an email to let me know you're coming.