Free speech, football & how companies think

Time for a quick mid-week post.

In the past few days, Twitter has been on fire in the UK with questions about privacy, footballers and court injunctions. The Tweeps I follow are 
mostly lawyers in the UK and the US. This group of people has a particular angle on the current debate. Wherever they stand on the individual case in hand, most are horrified by the damage that's being done to the rule of law. So am I.

Just to get it out of the way, on the narrow case, 
I'm in the camp that declines to name the person in question for so long as the court order is in force. At the same time, I have a great deal of sympathy with those who think the judges in England are a long way past what Parliament envisaged when it enacted a right to privacy. I'm extremely uneasy about sacrificing the privacy of thousands of people on Twitter by revealing their identities to the well paid lawyers for a wealthy adulterer.

But nobody with any sense is reading this blog for my views on free speech, because there are hundreds of people better informed and better placed to comment. Nor should they be reading this blog for my views on football. I throw the sports section of the weekend papers away, unread.

If you're reading this blog, it should be because you're interested in the viewpoint of a decent sized company's General Counsel. Right now, in 2011, the really serious hard-headed pragmatists of the GC community are not much present on Twitter or on the blogosphere. There are lots of different types of lawyers and I don't have any views on the merits of any particular group. The relatively small tribe I belong to spends its time making very brutally realistic decisions about money (which we count in dollars), defending companies in front of regulators, hiring and firing people, counting all kinds of cost.

The aspect of the debate I feel qualified to comment on is "What will Twitter do?" I think it's worth providing some guidance on how (large) companies think in situations like this. Here are a few anchor points:

1. Companies want to be seen to obey the law. No company wants to be above the law and they will go to great lengths to stress this. They will try to obey the rules that apply to them.

2. Companies will avoid forming moral or social judgements about their customers. They don't want to pass judgement on the the class, race, nationality or views of their customers. They want to understand them, influence them, but not judge them.

3. Companies want to stay focused on the narrow goals in front of them. They don't want to be distracted into questions about conflicts of laws, who's right, whether democracy is best etc.

4. Companies take very seriously their responsibility to provide prosperity to their employees and their shareholders. Senior managers know their decisions affect thousands of people's livelihoods.

What does this mean for Twitter? Rule 1 means they will stress the need for everyone to be responsible and obey the law. Rule 3 says they will do precisely nothing about complying with English court judgements any more than they will Iranian ones. Rule 2 says they will on no account delete the accounts of the Tweeps who flout English court orders. Rule 4 says they will do nothing which damages their brand and allows someone else to replace them.

If you're a lawyer working in the field of free speech or privacy, don't for a moment believe that Twitter is bothered about such topics except insofar as they relate to Rules 4 and 1. If you want the attention of their legal department, go to the courts in California. If you plan to try to infringe Rule 4 and damage their commercial offering, for example by introducing a system to pre-approve tweets as a PR wrote in today's Guardian, expect a fight to the death.

Earlier today, when a European Twitter manager contradicted Rule 2 and passed judgement on the Tweeps, it was less than an hour before he issued a "clarification".

If you wanted a football analogy, large companies are like the German national side. It may not be pretty, but it's all about getting the result.

The day after this post was published, Legal Week ran the following: Twitter general counsel defends company's stance on fighting for its users' rights and hits back at BBC


  1. Sorry to blow a hole in your theory, but it is extremely unlikely that Twitter would ignore this Norwich Pharmacal.

    It is well within the power of the High Court to issue arrest warrants against Twitter executives as officers of the company. Twitter is a multinational entity and whilst you cannot extradite for contempt, it would be problematical if Twitter executives were unable to land at any UK airport for fear of immediate detention.

    Furthermore, it is highly unlikely that any Californian court would refuse a properly prepared disclosure order, to locate people in contempt. In fact, I believe the US courts would have a lot of sympathy for someone subjected to a great deal of harassment in breach of a court injunction.

    Lastly, it is in Twitter's interests to be cooperative. They have unwittingly provided the means for their users to act illegally. If Twitter provides the information, this would be in their favour should Parliament seek to prevent a repetition through legislation.

    I doubt that the majority of (law abiding) Twitter users would disagree that it has been abused to defy the law. It may prove a salutary reminder that with the power to tweet, comes a responsibility to act lawfully, politely and within Twitter's terms and conditions.

  2. Jason. I don't for a moment disagree with your exhortations for people to act responsibly. But nothing you say so much as dents my views on the rules I set out. I don't profess to know how the US courts would react to a motion on the subject matter, but until they opine (assuming they're asked to) the rulings of the Jigh Court will make no difference. And I don't share your confidence that the rest of the world sees this topic the way the courts in England do.


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