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The Attorney General has made it very clear this week that he will enforce privacy injunctions against Twitter users if need be, to uphold the Rule of Law. Conversely, free speech advocates are saying that the Twitter phenomenon makes a mockery of the law, rendering these injunctions meaningless. The implication of this advocacy is clear - injunctions should not be granted in situations where they cannot be properly enforced.
I'm sorry to say that this argument is fundamentally misconceived. Yes, Twitter is an amazing tool for breaching court orders, but that does not mean that the law cannot be enforced against Twitter or Twitter users. Indeed, the converse is true: while many Twitter users think that they are anonymous or beyond the reach of the law, in fact they are very easy to reach and identify; all it takes is will, determination and resources to get access to identification evidence from web companies. As far as the website operator and their users is concerned, there is no such thing as anonymity and, if pressed, the likelihood is that the website operator will hand over identification evidence, rather than put itself in breach of the law.
Nor is there any strength in numbers. As far as the law is concerned, each individual Twitter user is on their own. If they are called to account, there is no superhero waiting in the wings to protect them. If you want a comparable, thing about the recent history of litigation against alleged online IPR infringers; it didn't take too long for IPR owners to realise that they can go after the individual. Over 10 years have passed since the Napster model of civil litigation for IPR infringement shifted from litigation against the website to litigation against the individual.
So, the intervention of the Attorney General is very significant. Despite all the negative publicity that privacy injunctions have attracted, the fact remains that the law will be used to uphold the will of the Courts. The Government and Parliament has no other option; they cannot allow the impression to foster that the law is meaningless.
For those who are considering breaching court orders online, this is my message: don't inhale the hot air that is being pumped out by media commentators about Twitter rendering the law pointless, because it means nothing as far as your personal position is concerned. Indeed, in my view some of the media commentators should be more careful about what they are saying, because they are giving a false sense of security to the little guy. It's easy to talk tough when you are protected by Parliamentary Privilege, or when you are a lawyer schooled in the art of avoiding liability.
Stewart Room is a partner in the Privacy and Information Law Group.