You’ll have to forgive me this morning, for I am an addled, befuddled little burd. And it’s all down to the law.
Let’s take the super-injunction stushie. I’ve already nailed my colours to the mast. Yes, I do believe that the reams of stop papers served on media outlets and others preventing the disclosure of salacious details of the private lives of rich men (mainly) is distasteful. It is also evident of how the wealthy will always be able to buy protection for themselves at the expense of others. Frankly, it ain’t what a system of justice was set up to do.
Yet, I found myself on Twitter the other evening defending the one that has been shopped around all over that medium and now, every newspaper in the land, following the Sunday Herald’s brave stance with its front cover. I found myself defending it because he was probably entitled to his injunction. For everyone to make this case the cause celebre of all that is wrong with the system is misguided. There is no public interest here; this particular footballer has always been an intensely private individual; the court papers suggest less than fragrant behaviour by the woman involved who appears to have colluded with the media to try and create a story worthy of their attention; and he has never created a public persona based on his private personage. I couldn’t even tell you how many children he has or what his wife’s name is, such is the low profile he has given his family throughout his career.
This is entirely the wrong case upon which to demonstrate that the law is an ass and to try to tease out the balance between article 10 (the right to freedom of expression) and article 8 (the right to private and family life). There are other super-injunction cases, such as the Fred Goodwin one, which will have much more distinct public interest elements, where article 10 does and must over-ride article 8, and seem much more within the bounds of a wealthy man buying his privacy with the willing co-operation of the justice system, ignoring everyone else’s rights and the public interest in the process.  If we were actually serious about challenging the establishment rather than simply being titillated, of using these injunctions to create better law, we would have seized upon different cases, surely. As it is, we will now get more law that is not necessarily better law.
The problem for everyone, as the outed case demonstrates, is that it is incredibly difficult to contain information, thanks to the advent of social media and networking sites like Twitter. But never fear, here comes the First Minister, riding to everyone’s rescue, who has promised to “clamp down effectively on bigotry peddled online” and whose Government intends to make “such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail”.
Such a move has been welcomed by Paul McBride QC but also questioned in his usual forensic manner by Lallands Peat Worrier.
I do hope the Scottish Government’s law officers have been watching the super-injunction stushie closely. A threat by the outed footballer’s lawyers issued to Twitterland resulted in thousands more naming the footballer and spreading the details.  I doubt that folk would as gleefully seize on retweeting noxious sectarian bile but you never know. Such is our willingness – apparently – to defend our right to freely express what we want to, without real or proper consideration of the consequences.
And therein lies one of two problems for the Scottish Government. First, neither current UK equality nor human rights legislation intends to create a hierarchy of rights and protections. Indeed, the Single Equality Act attempted to remove the hierarchies of rights that existed amongst different minority groups. This underpinning belief that everyone is equal and should be treated equally was used to try to persuade the Scottish Parliament to create a series of aggravated offences – so-called hate crimes – that treated all prejudice and malice shown to all minority groups the same. The then Justice Minister, Cathy Jamieson, bottled it and we got hate crimes on the ground of religion and race and had to wait for Patrick Harvie’s private members’ bill to protect gay, lesbian and transgendered, and disabled people in the same way.
Expect when the new sectarianism bill to reach Parliament for the same arguments to be made. If it is wrong to use internet chat rooms to peddle hate on the grounds of someone’s religious beliefs (or rather affiliation to a particular football team – and this is where the burd becomes very confused – is it just the Old Firm that is now to be viewed effectively as an equality strand?) then it is wrong to do so on the grounds of someone’s gender, sexuality or sexual orientation, or different ability. Indeed, it is arguable that if it is an offence for Old Firm fans to peddle bile, then that must also apply to other football fans and further, to supporters of different political parties. Which might cause some of the worst offenders of the cyber spats between Labour and the SNP pause for thought.
At heart is my unease that by treating the current law as an ass, we may end up with less liberty not more, caused by our inability to police ourselves, to behave with any sense of decorum, of our failure to work out what is right and what is wrong and to insist upon our own individual rights trumping anyone else’s. By our own failings, we will end up living in a more illiberal society where our actions, thoughts and expressions in all media, are increasingly controlled and policed by the state. Because we do not know anymore where to draw the line and where not to cross it, the irony is that we, the little people will find our rights increasingly constrained and limited, while the real perpetrators – the rich who buy their way to justice and the peddlers of hate who have no respect for themselves or fellow citizens – will have the luxury of the law to protect their rights.
