Carter-Ruck-ed: thoughts on the The Guardian gagging order

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I have been pondering the ins-and-outs today of the Trafigura incident. There has been lots of chest thumping as if an online version of the Berlin Wall came down, but a lack of consideration in the wider sense of some of the implications. I have deliberately avoided discussions of why public relations is the true guardian of reputation mainly because others will delight in doing it instead.

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I started mapping my thoughts out to try and give this post a sense of direction.

First of all the law governing libel is broken, and the government is already looking into it. It doesn’t currently balance the needs of privacy with the right of public interest and it offended the online public’s sense of natural justice. My friend Stephen Waddington saidThis breaks new ground in the UK. Legal system can’t keep pace with the internet.’ He goes on to elaborate on this even further on his blog.

Disrupted Industries

I agree with him to a point, but the establishment has shown itself time-and-time again to try and offer succor to disrupted industries: the newspaper industry, the film industry, the television industry, the book publishers and now the lawyers. 

I expect the balance to be tipped legislatively much more in these lawyers favour over time because self-organising groups have scared the establishment rigid over the past two decades. What happened today was as scary for the establishment as the orbital raves were back in the late 1980s. Secondly, the crowds don’t lobby and don’t have the ears of the judiciary and lawmakers. Carter-Ruck could have had the upper hand if the gagging order forbid The Guardian from mentioning even the existence of a gagging order.

The Wisdom of Mobs

A second problem is that there are two types of crowds: good crowds and bad crowds. It is hard to legislate between the two and the difference between them is largely subjective. Those involved online today would agree that their actions and comments were good, and a large amount of them would look down on tabloid campaigns to further victimise paedophiles. Ask the salt-of-the-earth tabloid readers and they wouldn’t necessarily have such a nuanced view. The door that we have walked through to allow justice and freedom-of-speech through the wisdom of crowds can also easily succomb to the wisdom of mobs. Society hasn’t really thought through how to deal with all the ramifications. Ironically China is pioneering at least one of the things I think we can expect: real online IDs, nuking privacy, which is ironic given the amount of times that Carter-Ruck had defended the right to privacy of its clients in the past.

Freedom of The Press

In the longer term things are going to change, because of the challenges to the legal sector and the potential negative aspects of online societial empowerment, I am not sure what those changes are going to be but I am reassured that the media will exist as a trusted influential brand, even it isn’t one of the trusted brands that we currently know as part of the media industry.

Like the media of today, tomorrow’s influencers will be super-nodes within social information networks. It wasn’t completely out reason that The Sun bragged ‘It’s The Sun Wot Won It‘. If we’re honest about it, would anyone have cared nearly as much if Carter-Ruck had gone against one of the legion of anonymous and unread bloggers?

I read the full details from Guido Fawkes, mainly because it appeared on the first search engine results page of Google, more popular sites get crawled more often reinforcing their popularity. Fawkes is today as much of a media brand in his own way as The Spectator or the dearly departed Punch magazine.

Toxic Brands

Finally, I found it interesting how Carter-Ruck‘s own brand got tarnished. In some respects they are the real victims in the whole situation. The promise of their website has been betrayed:

Our lawyers are known for being dynamic, determined and thorough in pursuing our clients’ objectives and protecting their interests. A large number of our cases attract the attention of the world’s media and we are well-used to dealing with the challenges that this presents.

Would I now go to them to protect my interest in the future? Today would have certainly gave me food for thought before saying yes.  Determined thorough pursuit doesn’t necessarily work in a more open transparent environment where the give-and-take of dialogue holds sway.

The lesson that professional services organisations can learn from this incident is an age-old piece of advice – you are only as good as the company that you keep.