The LRB on the Ryan Giggs affair

by Mark Pinder

There is an interesting article in the current edition of the London Review of Books by former High Court judge Stephen Sedley articulating very well the concerns I raised, (rather facetiously), in an earlier post about the Ryan Giggs injunction affair.

In another LRB  article from 2006, Sedley raised some interesting arguments regarding how useful, (or otherwise), the privacy components of the Human Rights act are to the average non millionaire and how confusion, conflicting interests, and the laws of unintended consequences can impact on, (seemingly), well intentioned legislative initiatives.

Both articles inject a rare, (and much needed), blast of fresh air into a complex and hotly contested range of issues that are vital, not just to those of us that have ‘special interests’ in the issues raised, (such as journalists or photographers), but any of us that have real concerns as to the maintenance of a viable, functioning democracy not only in serving the interests of the wealthy, but the rest of us too.

We are entering a very difficult and dangerous period, where  correctly negotiating this moral and ethical  landscape, (populated by some very powerful, contradictory and polarised vested interests), is vital, not just to the future of press freedom and application of the law, but ultimately, wider freedoms and democracy as well.

To quote the concluding paragraph of Sedley’s current article: ‘The naming of Goodwin and Giggs is on a different plane from ministerial briefings against judges, inappropriate as these are, because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit.’

On the surface, I can’t disagree with that statement, but it does ignore the existence of that rather large and non house trained Elephant in the room, the internet, and the fact that it seems ridiculous that the media should continue to be prevented from commenting on or reporting something that became, (rightly or wrongly), public knowledge through the injunction busting agency of the world wide web.

Perhaps we now have to start waking up to the unintended consequences of not just the globalisation and deregulation of trade, markets and labour, but the anarchy engendered by the deregulation and globalisation of information and intellectual property too, and the seeming impotence of the judiciary or politicians to do anything about it, in a world where old fashioned concepts like borders now only really apply to the poor and disenfranchised.

Another Genie has been let out of the bottle. One that further weakens any concept of the nation state or ability of the politicians to legislate for the interests of anyone other that the global new media corporations, (most notably Google), who peddle fantasies of the free-flow of information whilst simultaneously coercing intellectual property away from their true owners, only to repackage, mediate and monetize it, whilst disingenuously pushing a self serving fantasy of being the good guys, where they conflate freedom of expression with freedom to exploit. A position which government appointed academics such as Professor Ian Hargreaves, are loath to contradict. A man, who to all intents and purposes, may just as well have been  a shill to the global IP leveraging industries, considering how little notice he took of the small artisan producers of intellectual property in his recent review and how devastating to the economic basis of my industry, (amongst many others), his recommendations on ‘orphan works’ licensing will be.

Rather than responding to the changing IP landscape by tightening regulation to protect the creator, he has recommended loosened the law in the interests of the pirate instead. With the near routine stripping of metadata from image files, photographs pretty much become orphans the moment they enter cyberspace, and if they aren’t, someone, somewhere will soon arrange it. This is a gift to the likes of Google, and only serves to further illustrate the impotence of the politician or judge when it comes to attempting to regulate or understand another aspect of the globalising juggernaut that they are increasingly powerless to control, runs on it’s own logic and rather stupidly, have been conned into colluding with.