Monday, 23 May 2011

The changing landscape of Privacy

Cassius lunched yesterday with an eminent Lawyer, a man with a lifetime’s experience of picking up the pieces left by public figures who ought to have known better. Conversation turned to the CTB affair – what had gone wrong? What was the legal industry going to do about it? What about the media? Above all, can we blame the French?

Until now, the media Lawyer has lived off the newspaper editor in the same way that the gamekeeper lives off the local poacher – apparent enemies; they make their living from the same trespass. And the lawyers have a problem. The poachers are no longer a few well-worn local faces, but the massed ranks of Twitter and other social networks. Even valid injunctions are of limited use. Serve every individual? - notifying tens of thousands of Twitter users would be self-defeating. Seek to control Twitter, and other services? – Better ask Colonel Gadaffi

If the problem of privacy is to be solved, it will not be by lawyers. Try as they might, they are unlikely to turn this into the the goldmine they seek.

For traditional Media the outlook is equally grim. Deprived of a monopoly as the guardians of gossip, they can’t choose the stories the public are to read, and they can no longer profit from them either. In their stead, a new generation of bloggers has grown up. The best of them (GuidoFawkes and the up-and-coming FleetStreetFox spring to mind) combine the tenacity of the tabloid reporter with what amounts to a real time instinct for public decency

As curators, these newcomers are at least part of the solution. Contrary to what Lord Neuberger seems to believe, they are anything but out of control - because they can’t afford to be. Creatures of the Internet, every one of their posts and tweets is subject to democratic comment and - as Schillings have discovered to their cost - Twitter in full cry is as formidable as any libel suit or gagging order.

For Guido and his like, one inaccurate story or a tweet in bad taste would spell ruin.

So what is the poor celebrity to do? If the masses have become the new Media, then celebrities themselves are its publishers. They are certainly profiting from fame – we would be less bothered by the minutiae of these peoples lives if we didn’t have to watch a stream of freshly shaven footballing couples posing for cash in tasteless Cheshire mansions.

And what is the European experience? We lunched in an Alpine village where every other family is an international household name, and which – whilst there is juicy scandal daily - remains largely untroubled by reporters. Why is this? Is it because they have bigger gaols?

It seems not. It doesn’t happen here because celebrities behave as human beings, and are treated accordingly. When they have affairs, or snort cocaine off hookers, they do so amongst friends and if they are caught they are fairly matter of fact about it. Above all, they avoid hypocrisy.

The public, in Europe as in Britain, are less salacious than either tabloids or Judges might think, and as CTB is now finding out, it is easier to ask them to forgive than to force them to forget.


Sunday, 22 May 2011

A letter to CTB

Dear CTB

Last week, Schillings made an application on your behalf to identify those who might have broken the confidentiality order you obtained against Imogen Thomas and News Group. Such applications are commonplace where untruths have been posted or repeated.

But you know, and we know, that your case is not about the peddling of lies. It is about the power to keep a secret.

Your extra-marital affair with Imogen Thomas may, by European Law, be protected as part of your private life - tempered only by legitimate public interest - which has not yet been argued. In the meantime the allegation seems to be that Imogen wanted you to pay her to prevent her selling the story to the press.

In the hearing the Judge - although interestingly not you - suggested "blackmail", an ugly, soul destroying crime in which someone demands money to which they are not otherwise entitled by threatening to reveal ugly secrets about another. If you are a victim of blackmail, you deserve protection.

Is it really that straightforward? When you embarked upon an affair you made Imogen a part of your life story and she made you a part of hers. Absent an agreement between the two of you a reasonable man might feel that her story belongs to her, and yours to you. Why should you be able to restrain her from selling it? If you wished to conduct an affair in secret, maybe you should have signed a confidentiality agreement and paid her for the loss of her life story - as companies do with key employees?

Or maybe you should have kept your trousers on.

Has your application achieved its objectives? If the aim was to maintain what remained of your privacy you have failed utterly. You, your identity, and your affair are this morning a bigger story than ever. Your advisers, Schillings are social media specialists. They have increased their profile tremendously with this case, but they will certainly have warned you in advance of the of the situation you find yourself in this morning.

The internet has a vigourous, collective, morality. When writs against "persons unknown" are cast into a liberal, democratic community like Twitter the universal instinct is to tell the truth and shame the devil, to defend the underdog - and, right or wrong - it is an admirable instinct very much in tune with the British people - your fans.

And this is the rub. When the traditional media were the only publishers of stories to the masses, the courts could restrain by injunction, and lawyers had only to work out who to serve who to bill. This is the world view etched in the minds of the legal industry, and it is wrong. Lawyers who truly understood social media know that Twitter and others are changing publishing as fast as ITunes changed the music industry - today, the masses are the media and celebrities are the publisher.

But you already know that, because, like many celebrities today, becoming your own "publisher" has made you richer than you would ever have been in previous generations. You have profited from the attention of your public and you can hardly be surprised if they turn on you with vigour when you send lawyers against them with sinister applications.

Celebrity is your stock in trade. Nourish it, take care of it. If you dont want someone to sell their life story, dont become a part of it - take counsel from one of your more sensible colleagues, Ryan Giggs, who, in the words of his agent :

"appreciates he is doing something he enjoys, and he also enjoys what it brings, and by putting that with his family and his home, he's got the perfect life, so why bugger it up by playing away or insulting somebody?"

And if that is all too much for you, why not try, like Andrew Marr, being honest - even at this late stage. You might find your fans surprisingly sympathetic.