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Does the Internet respect the concept of privacy?

The media is prone to expressing outrage and bewilderment that any information at all should be withheld by the Courts or the Government of the day. But, asks media lawyer Paul Tweed, surely this overlooks the actual reason for such secrecy?

The internet is akin to the wild west Larry Jacobsen

Sections of the media have been expressing outrage and bewilderment that any information at all should be withheld by the Courts or the Government of the day. However, I believe the actual reason for such secrecy is often overlooked and, at times, undermined. Transparency and access to justice is one of the fundamental mainstays of our judicial system, but should not public safety also be given a degree of priority in appropriate circumstances?  

We do not have precise details of the national security issues that form the background to the terrorist trial that has created so much controversy in recent weeks.  Nonetheless, it has caused many to question whether there should be any justification for a secret trial.  I feel that this issue goes to the core of our parliamentary and judicial systems. In this, Government has always been afforded a degree of discretion in such matters, with the Court being the final arbiter in determining as to whether a Hearing should be held in camera. 

We already have statutory protection for witnesses in criminal cases and Defendants in rape trials in order to protect them from intimidation or to prevent the identification of the victim of a serious sexual offence.  Indeed other jurisdictions have gone further than the UK in granting anonymity to those accused of certain serious sexual crimes, as well as the victim. 

HIgh standard of proof

Now, to put matters in perspective, cases like the terrorist trial are extremely rare, which confirms that the Courts impose a very high standard of proof and will facilitate only the most exceptional and deserving cases. Judges will always adopt an extremely robust stance and will be very circumspect in considering the evidence before granting an Order of this nature.  

However, as neither the press nor public know the reasons for such secrecy, the Government’s actions have been viewed with a certain degree of cynicism and suspicion. One solution might be for decisions relating to national security to be reviewed by a cross-party committee. Their role could then be to verify the merits of such decisions. In any event, I believe the judiciary provides more than an adequate safety net which should give the press enough comfort. Are we then in danger of ignoring the issue of whether secrecy and confidentiality can be preserved within the judicial system in the era of the tweet?   Does the Internet respect the concept of Privacy?  Will it take a high profile tragedy to cause public outrage?

The authority of the Courts has already been seriously undermined by the treatment of super-injunctions on social media sites such as Twitter, with the Ryan Giggs case an obvious example.  Despite a Court Order determining that neither the fact of the injunction nor the identity of the Claimant should be revealed, the footballer was named within a matter of days on social networking sites.  

Wild west of the internet

Although traditional print media still have to toe the line in respecting Court Orders, the wild west of the internet shows little such respect. And the threat of criminal sanctions for contempt of Court appears to hold little or no deterrent for them. And so with the best will in the world, the forthcoming secret terrorist trial may turn out not to be so secret after all, irrespective of the media debate.The power of the tweet is much more difficult to harness and control than Government’s actions and it may take a high profile tragedy to cause public outrage, before this fundamental problem is fully appreciated, and addressed, in a manner that is fair to everyone.

What is often overlooked is that the basis for the much maligned super- injunction is often against the background of a threat to life or the protection of children’s’ interests. There is therefore a very real risk that somebody, in their determination to undermine the system, may end up with blood on their hands and we will then experience at first hand the actual price and the value of secrecy!    

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25 July 2014

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