The disclosures of US diplomatic cables over the past week (covered in the Guardian and around the world) has reminded us that one way to ensure effective release of highly confidential secrets is for it to be released from a number of servers in different jurisdictions. The result is that it is almost immune from the type of sustained Court action such as the Spycatcher litigation in the late 1980s.
In the Spycatcher cases in England and Australia the British Government sought to restrain the release of the memoirs from the disgruntled former spy Peter Wright. The litigation failed to stop the publication of the book, mainly because it was being imported from America and was in the public domain. Whilst the High Court was granting injunctions, the books were widely available in the High Street. Although the litigation failed to stop the book, it did develop the law of confidentiality and aid the development of the protection of privacy, even before the Human Rights Act (see Attorney General v Observer [1990] 1 AC 109).
One of the most important products of this litigation is the so-called “Spycatcher principle”, whereby where an interim confidence injunction is granted against a person restraining publication of information, a third party who is aware of that injunction is effectively bound by it. If the third party publishes the information he is potentially guilty of a criminal contempt for undermining the purpose of the interim injunction (see for example X and Y v Persons Unknown [2006] EWHC 2783 (QB)). This principle does not however apply for final injunctions obtained at trial (Jockey Club v Buffham [2003] QB 462).
In the “misuse of private information” context, perhaps the most famous example of massive publication on the internet preventing an interim injunction being granted was the interim injunction decision in Max Mosley v News Group Newspapers ([2008] EWHC 687 (QB)). In that case the News of the World without prior notice ran a dummy edition and then published in hard copy and the internet an article and pictures and a video of the claimant’s “S & M” sexual activities with a number of women. The article and video was widely republished on the internet. In refusing an injunction, Mr Justice Eady held:
“In the circumstances now prevailing, as disclosed in the evidence before me, I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference. One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.” [36]
This is what has become known as the “Canute principle” (see [34] and Re Stedman [2009] EWHC 935 (Fam), [74-93]).
Once there has been substantial internet publication the confidential information in question is definitively in the public domain and no action for breach of confidence will lie – although the position may be different in relaton to”private information” particularly photographs (see Douglas v Hello Ltd (No 3) [2006] QB 125, [105]).
Someone wishing to destroy the confidentiality of information can, therefore, do so by generating large internet dissemination. The wider the dissemination the less likely it is that it could be restricted. There is an interesting article in the Guardian by Mehan Javrasuriya about how Wikileaks has sought to use multiple servers to avoid being stopped/censored. However, Wiki Leaks is under attack from other quarters. First it was removed from the Amazon servers – as a result, it was claimed, of political pressure. Now the Guardian reports that Wikileaks has lost its “DNS” support – this is a service which translates a website name into machine-readable “IP quads”. Without this service, the “website name” no longer works. As a result, Wikileaks has, for the moment, been removed from the internet.
We would add two other points on “Wikileaks” and the Internet.
First, Roy Greenslade has blogged in a post about the public interest aspects to the Wikileaks releases of information and on the comparison to hacking telephone messages.
“Most importantly, what these cables starkly reveal is that diplomacy equals hypocrisy. We cynics in the media (and political) elites might have known that, but citizens have a right to know that there is a yawning gap between what is said in private and what is said in public.
We need to rise above the stories themselves to understand the value of allowing the citizens across the globe to see what governments do in their name.
As journalists, we should do all we can to shine light into dark corners. Our trade is disclosure – as I argue in my London Evening Standard column today – and we should revel in the opportunity to increase transparency.
There is a world of difference between illustrating how a powerful country like the United States conducts its diplomacy and a News of the World reporter seeking royal tittle-tattle.”
Finally, there can be no doubt that, even in relation to the so-called “mainstream media”, the internet is moving to the centre stage. In October 2010 the “Mail Online” overtook the “Guardian online” in readership. The ABC figures are:
The Mail Online: 50,051,735 monthly browsers
Guardian online: 37,463,006 monthly browsers
Telegraph online: 33,944,742 monthly browsers
Independent online: 12,449,264 monthly browsers
Why isn’t The Guardian suffering the same sort of attacks as wikileaks?