The public is right to nullify the PJS/YMA injunction

Back in 2012 a New Hampshire man, Doug Darrell, was caught growing marijuana for personal use. He was charged and appeared in court.

Mr Darrell was clearly guilty of the crime. The evidence was beyond doubt, not least because he admitted to possessing the illegal plants. Despite this, he walked away a free man.

The reason for this favorable outcome was down to the jury. While they knew that Mr Darrell had broken the law, they also noted that he was a peaceful man whose actions had harmed no one. With this in mind they stated that his prosecution served no interest and that his behavior did not warrant sanction. They nullified the case and he was acquitted of all charges.

This principle, known as jury nullification, is an important component of jurisprudence. It acts as a check on government power, guards against corrupt courts and judges, and allows the people some scope in determining how the law should be reasonably and logically applied.

The process of nullification is an apt demonstration that laws can only be maintained with the consent of the governed. And in that respect, it could be argued that another form of nullification has taken place over the past week: the nullification of a court injunction by a kind of popular social media 'revolt'.

The injunction in question is one granted, on appeal, in favor of celebrities Elton John and David Furnish (known in anonymized form as PJS and YMA) who wanted to keep secret the details of alleged sexual activities. *

Although the injunction has the force of law and has been adhered to by the English and Welsh press, mainly for fear of the significant sanctions that would apply should they break it, it has been flouted by many people within the court’s jurisdiction. They have tweeted, discussed, posted, blogged, and disseminated the names of those involved in defiance of the court’s ruling. Given that most of these individuals are likely to be ordinary, law abiding citizens it is reasonable to consider why they have, so casually, ignored and disobeyed a court order.

Certainly, the desire to know may have something to do with it; but that doesn’t explain the active sharing and discussion on social media: it is easy to find out the identity of the couple involved without repeating, or retweeting, it.

The real reason for this act of disobedience lies in the fact that large numbers of people see the law, or at least the injunction that enforces it, as nonsensical, irrelevant, and illogical.

Unlike the legal system, the world in which most people live is global and interconnected. If their friends and contacts in the United States, or elsewhere, are discussing the matter people don’t see why they can’t join in. It makes no sense to them that they could phone relatives in Scotland to find out the news; just as they could walk across the border to pick up a copy of a Scottish newspaper which contains all of the lurid details.

In this context the people have, in effect, taken it upon themselves to nullify the injunction because the application of the law makes no sense. It’s like the Emperor’s New Clothes: a situation where everyone knows something, but no one is permitted to speak of it.

Enforcement of the law, while possible, would also be problematic. Certainly the grounds for prosecution are solid, but there are likely relatively few people who’d see the prosecution for retweeting something known around the world to be meaningful, fair, or within the public interest.

As much as the courts should ordinarily be respected and the law upheld, this nullification is no bad thing. It sends a very clear message to the legal establishment and to the government that the law, in its present form, is out-of-touch, impractical, and illogical. It needs to be reviewed and rewritten to take account of the way in which society functions and people live their lives.

That all of this has arisen is partly because the law under which the injunction is granted is, quite simply, bad law. It is law based on a fundamental misunderstanding of the concept of rights that should never have been integrated into the English system.

While individuals have an absolute right to privacy from government intrusion, that right does not automatically extend to their interactions with other individuals.

To understand this, it is necessary to, briefly, examine the concept of rights.

All natural rights are property rights. Such rights, which include the right to life, protect people from violations against their person or their tangible property. The right not to be murdered, enslaved, robbed, raped, or have property trespassed upon are all examples of such rights. The rights are logical inasmuch as respect for one person’s property rights does not infringe on another person’s similar rights.

Privacy, however, is not a natural right. It is, in actuality, a ‘made-up’ right that has no basis in logic and can only be enforced via the violation of another person’s property rights.

Take for example the case of the current injunction. There are two parties, both of which were involved in the sexual acts that took place: one party wants to reveal the information, the other does not wish for it to be revealed.

Despite this conflict between them the rights involved are clear. The ‘information’ or ‘knowledge’ is not tangible property; it is not owned, and cannot be owned, by any one party. As such, there can be no violation of property rights if it is shared.

Indeed, by restricting sharing – either by disallowing one party to speak of what happened or by denying the right of others made privy to this information to publish it – there is an express violation of the right of free speech, which is a corollary of the right to use the property of one’s own knowledge and mind.

Certainly there are circumstances when the right to privacy would apply. For example, where information has been obtained illegally such as by an act of trespass or robbery (both a violation of property rights). Another example would be where the information being disseminated breached a freely made contract or legally binding agreement which assigned intellectual property rights or guaranteed privacy. A further, and more occasional example, would be a temporary restriction necessary to prevent a clear and demonstrable threat to life or a serious miscarriage of justice.

Outside of these areas, and possibly a few other very specific exceptions, there simply is no right to privacy. Such a right is not logical and it has no place in rational law.

While many of the individuals concerned will not have given the matter this depth of consideration, their views that the law is ‘a bit silly’ likely arise from an instinctive and inherent understanding of such logic.

Sadly, this is an instinct not shared by the framers and writers of our laws.

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* This article was written and posted in the State of New Hampshire by a Granite State resident and is, therefore, protected by the First Amendment of the United States Constitution and Article 22 of the New Hampshire State Constitution – both of which guarantee and codify freedom of speech and of the press. Furthermore, the United States does not, by right, recognize the injunctions of foreign courts or jurisdictions, especially where these violate the protections laid down by the Constitution. Naming the individuals involved is not intended to be provocative: it is done in recognition of, and in tribute to, the freedoms of the United States which have been upheld and preserved by the sacrifice of many brave men and women.