Law Thirty-Six

You gotta go with what works

A balance of inconvenience

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I utterly do not care what PJS, AB, and CD got up to, even if it did involve olive oil. I do not care who PJS is married to. If I had passed a newspaper with the real names of these people on the front page, discussing in full tabloid frenzy what they had been up to, I wouldn’t have slowed down long enough to read it.

But for the fact that PJS sought an injunction to stop the publication of this story, I wouldn’t know as much about it as I do, including the identity of PJS and the person he is married to. In fact, when I did go looking for them, the names of the people involved we extremely easy to find: page 1 results on Google based on a few simple keywords about the case.

This is what is known as the ‘Streisand Effect‘, and when you Google ‘Streisand Effect’, the first thing you see is a picture of her house.

PJS’s injunction is based on a right to privacy and the protection of confidential information. New Group Newspapers, defending the action, claim freedom of the press and public interest in the story. The whole thing ended up before the Supreme Court today and was a sufficiently complicated issue that they’ve reserved judgement until an as-yet-undisclosed later date.

The question that is vexing them is whether the substantial coverage outside of England and Wales of the private and confidential information PJS seeks to hide means that it no longer makes sense to stop people inside England and Wales from publishing these details.
In other words, the horse has bolted – we may as well stop yelling at people to shut the stable door.

Due to Reasons, the jurisdiction of the court PJS has brought the action in extends only to England and Wales. Scotland, with its own legal system, is beyond the reach of the courts and so a newspaper there published the full story in its print edition (but not on its website).

If this was a law exam, we could now debate the details of whether my naming the people involved, or linking to or hinting about places where the information could be found, would be a breach of the injunction. This website is hosted on a server in the US. Does it matter whether, when I click “Publish”, I’m sat at my PC in England or sat in a hotel in Scotland? Discuss. 10 marks.

Legal rights mean nothing without the ability to enforce them in a practical, realistic way. Where I am at the moment I click Publish is less important than whether there’s anything of value to me within the English courts’ jurisdiction – like the web server, my house, my bank accounts, or me. Today, a legal right not to have something made publically known is easily defeated by the fact that the Internet exists. The only way that information is going to stay private is if it’s so boring that no one can be bothered to publish and re-publish it online.

In this case, PJS sought his injunction in late January, and should probably consider the fact that it’s late April and the news still hasn’t been published in England as a win.

Just getting the injunction wasn’t enough, though. PJS has also instructed lawyers to help enforce the injunction, searching for publications naming PJS and sending them letters asking them not to. Well, not really asking.

Some of those receiving such a letter have responded to point out that they’re not in England or Wales, they do not operate in England or Wales, and have no assets in England or Wales, so they’re going to ignore the letter and carry on doing what they were doing in the first place.
So the law is an ass, even the Daily Mail says so

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…but this issue of laws without realistic enforcement is hardly new. As soon as you look at employee rights in any detail, you realise how weak they are because of the inequality of power and resources between the two sides. The wronged employee’s access is justice is fettered by whether they can afford financially to enforce their rights, whether those legal costs are in proportion to the wrong they’ve suffered, whether they can afford to risk losing the case, and perception issues around whether someone who took their former employer to court is a troublemaker best avoided.

And here’s another hypothetical example. Let’s say you come home one day and your neighbour has parked his car on your drive. What are you going to do? You call the police, and they tell you that it’s not a criminal matter. You call the council, and they tell you that since the car is on private land (yours), it’s nothing to do with them.

Can you have the car towed away? Opinions differ, but even if you decide that you can, and even if you manage to do so without damaging the car, you’re probably the one who’s going to end up paying the towing fee. And, of course, you have to start the whole thing again the following day when they park their car on your drive again.

So what is the law’s solution? Your neighbour has committed a civil trespass and you need to sue them through the civil courts. You engage a lawyer, you have letters written threatening legal action, and finally you turn up in court, make your case, and hopefully come away with an injunction telling your neighbour not to park in your drive or near your drive. And when they continue so to do, you go back to court to have the injunction enforced.

How much has that just cost you? How long has it taken?

Or, if it’s a car that they actually want back and you’ve got gates at the end of the drive, you lock the gates. If you don’t have gates, a big bag of gravel will also work.

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Yes, that’s actionable, but it’s not a crime, and it’s nothing to do with the council, and what you’re really doing is raising the stakes to a point where your neighbour decides it’s less hassle to park somewhere else than to deal with you.

And that’s what it all comes down to – a balance of inconvenience. If you want a life of crime as a burglar, go right ahead. You’re going to get arrested a few times, and at some stage, the cost and hassle of being locked up in jail will outweigh the benefits.

The entertainment industry’s battle against copyright infringers and illegal torrent sites is on two fronts: an endless game of whack-a-mole as publishers issue DMCA takedown notices or force ISPs to block torrent search engines on one side; Netflix, Spotify, Apple Music, Tidal and all the other legal pay models for streaming and downloading content on the other. The effect is to make illegal downloading harder than legal purchasing for the average person on the street. Software activation technology (that ties an installation of, say, Windows to a specific PC) isn’t perfect – you can get around it – but for the average person it’s hard enough that just paying Microsoft the money is easier.

Unfortunately for PJS, he is on the losing side of this battle. The more time his lawyers spend on enforcing the injunction within England and Wales, the more attention the matter attracts internationally. PJS has already shown that he has deep pockets – taking a case to the Supreme Court and instructing lawyers to send letters to anyone publishing his name is a time-consuming business.
But he is never going to make it more trouble than it’s worth for News Group. For them, it’s not just about how many papers they’ll sell if/when they publish his story: they’re fighting against the concept of the celebrity injunction. They’re fighting to make sure that they can publish the next story and the one after that.

At some stage, PJS is going to realise that he’s wasting his money. Money that he could be spending on more olive oil, if that’s his thing.

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