You Can't Read This Book: Censorship in an Age of Freedom

Epigraph

There is an all-out confrontation between the ironic and the literal mind: between every kind of commissar and inquisitor and bureaucrat and those who know that, whatever the role of social and political forces, ideas and books have to be formulated and written by individuals.

CHRISTOPHER HITCHENS

This book covers the power of the wealthy to silence critics, the conflict between religion and freedom of thought, and the determination of dictators to persecute dissenters. Let me begin with a problem older than them all: how can a woman discover if her man is cheating on her?

If she were married to a rich Englishman in the early twenty-first century, her husband could use the full force of the law to keep her in ignorance. After Parliament gave judges the power to develop a right to privacy in 2000, the judiciary rejected England’s tradition of open justice with a breathtaking disdain for the past. The judges did not allow a free press to report what it knew, and punish editors only if they unjustifiably infringed the rights of others. Instead, they engaged in pre-publication censorship, the most suffocating form there is, and told newspapers in advance that they could never report forbidden facts. Under the terms of their injunctions, no one was able to say why a banker or celebrity had taken legal action. By the judiciary’s logic, the ban on the reporting of the proceedings of the courts made sense. The secrets of the outwardly wholesome star who is sleeping with the wife of his best friend, or the outwardly respectable tycoon who hires prostitutes by the half-dozen to beat him in a London basement, would not be secret if the media could publish a description of his reasons for keeping his private life private.

Then the judges screwed the lid down tighter. They turned ordinary injunctions into ‘super-injunctions’, which not only barred reporters from revealing why claimants had gone to court, but barred them from revealing that claimants had gone to court at all. The censors censored the fact of censorship. The existence of their ‘super-injunctions’ was itself a secret.

The readiness of the judiciary to use the law of libel to stifle public debates in England and around the world had already provoked protests from the US Congress, the United Nations and journalists investigating oligarchs from New York to Kiev. True to their censorious form, the judges went on to shut down arguments about private life. They rejected the example set by American lawyers, who had created the concept of ‘the right to be let alone’ for ordinary citizens, but given public figures fewer protections. Instead, they invented rights to privacy that hardly anyone who went to work for a living thought justifiable.

The corporate-responsibility guidelines of modern corporations and state bureaucracies did not regard affairs at work as private matters. If a powerful man began a relationship with a subordinate, trade unions, supervisory boards and employment tribunals wanted to check that he had not pressured the woman into pleasuring him by hinting that her career would suffer if she did not. If there had been no sexual harassment, they wanted to know whether she had entered the affair in the expectation that pay rises and promotions would follow. The US Congress almost impeached Bill Clinton for having sex with an intern in the White House and lying about it under oath. In many companies, a philandering manager risked instant dismissal.

Everyone agreed that there was a public interest in the links between sex and the abuse of power and position – everyone, that is, except the judges. They gave Fred Goodwin, one of the most disastrous figures in the history of British finance, an injunction to suppress reporting of an extra-marital affair he enjoyed with a subordinate while he was leading his Royal Bank of Scotland to ruin – and half-bankrupting Britain as he did it. Even though Goodwin was in charge of a publicly traded company, the courts said the relationship was private. If the media wanted the gagging order lifted, they had to prove in advance that the affair was a specific abuse of power. The most hard-bitten hacks would have found clearing the hurdle the law had raised a formidable task. The judges had made it a contempt of court to identify the mysterious woman, so how could they ask questions about her?

Discovering what the judges censored in secret hearings was a difficult enterprise. The best information came from a tabloid journalist who risked contempt of court proceedings by piecing together snippets of information from newspapers’ legal departments. Writing on the Web under the protection of a pseudonym, she said that a few of the super-injunctions she had been able to study were unobjectionable. Judges had intervened to protect children or private citizens who just wanted the press to leave them in peace. Most of the time, however, they came to the aid of people in the public eye: a first XI and full substitute bench of footballers, stars of stage and screen, singers and corporate executives. The majority of super-injunctions covered extra-marital affairs. They aimed to silence ex-mistresses, former wives or cuckolded husbands. In other instances, employers imposed them on former employees to keep accounts of professional incompetence or affairs in the workplace hidden. ‘Some are absurd: one involves allegations that someone is losing his hair, while another is about a man who died after he got an injunction but it still can’t be reported. Another is about failures by a doctor who was criticised by a judge in a social services case, but cannot be identified.’

When Ryan Giggs’s lawyers tried to stop a beauty queen telling of her nights of passion with one of the most talented footballers in the English Premier League, they thought they had a straightforward case. She was preparing to sell her story, they said. The English legal system must silence her to protect Giggs’s public image as a loyal husband and wholesome sporting role model. The judge told her to shut up, and warned the media that they must censor themselves or face the consequences. The sole option left to the frustrated tabloids was to run articles complaining that the courts had stopped them exposing an unnamed footballing ‘love rat’.

No judge on earth can stop journalists gossiping, and many who worked in the media knew that the mysterious footballer was Ryan Giggs. Thirty years earlier, the gossip would not have spread far beyond the offices and pubs of Fleet Street. If editors had thought for a moment about sharing what they knew with their readers, the knowledge that the courts might have imprisoned them and hit their proprietors with substantial fines for breaking an injunction would have stopped them. This was the way it had always been.

Few in authority realised that their manageable world, where gatekeepers controlled the news and judges and politicians held gatekeepers to account, had gone. Word of Giggs’s injunction reached Twitter. Account holders, some hiding behind pseudonyms, linked him to the beauty queen. His lawyers did what their predecessors would have done. Tweeters were publishing in defiance of a court order, so the lawyers’ job was to identify and punish them. They announced that they would take legal action against Twitter, and compel it to reveal the identities of users who had placed themselves in contempt of court. Stuck in the last century, they did not understand how ridiculous their threats sounded.

Suing the Internet because they did not like what people were typing on Twitter? They might as well have sued the sky because they did not like the weather. The Internet is just there, like a force of nature. If one person, living in a court’s jurisdiction, breaks an injunction, a judge can punish him. But how can a judge punish a thousand, ten thousand, a hundred thousand?

If the Web has a soul, then a loathing for censorship stirs it. Ever-larger numbers of bloggers and Facebook and Twitter users responded to legal intimidation by posting details of Giggs’s affair. Most were English, but Manchester United is one of the best-supported clubs in the world. Many who were interested in Giggs or irked by the censorship he was trying to enforce lay beyond the jurisdiction of the English courts. Newspapers in Scotland and India saw the protest in cyberspace. They realised that English judges could not control them, and ran the story. Those who wanted to know about Giggs, and many who did not, knew about his adultery, but according to the law, no journalist or broadcaster in England could talk about it. Finally, a Liberal Democrat MP stood up in the House of Commons, the one space in England where free speech is protected and the lawyers cannot harm you. John Hemming said that seventy-five thousand people had reported on Twitter that Ryan Giggs was the adulterous footballer, and the courts could not punish them all. He would end the farce by naming him in the Commons, so that the mainstream media could escape the injunction and repeat what millions already knew.

No public interest was served by revealing details of Ryan Giggs’s sex life – which does not mean the public was not interested in it. But optimists about the liberating potential of technology could find reasons to be euphoric even in the tacky tale of Giggs’s betrayals. The Net had proved that it had no borders. National laws could not contain it. Attempts to press down on the free circulation of information in one country just pushed it into other countries. The ability of users to copy, link and draw others into their single-issue campaigns had stripped censors of their power.

On this cheerful reading, the Giggs affair was more than a story about the energetic sex lives of players in the English Premier League. It was a harbinger of revolution. Online citizens – puny as individuals but mighty as a collective – had come together to create an unstoppable flow of information. By connecting with each other and sharing their knowledge, they had prevented suppression. And their defiance of the law was so painless. Modern radicals did not need to slog through dull books and duller meetings. They did not need to enlist in a political party and campaign for politicians who might enact reform. Joining the revolution was the work of seconds. They had only to tweet 140 characters or, with a knowing wink, make a photo of Ryan Giggs their Facebook profile picture, and judicial power, whose writ had run for centuries, would collapse. The ease with which they had fought and won seemed to reveal the impossibility of censorship anywhere by anyone.

‘An old way of doing things is dying; a new one is being born,’ announced a US cyber activist just before Giggs sought his injunction. ‘The Age of Transparency is here.’

So it appeared. WikiLeaks became the new age’s journalistic phenomenon, as it dumped masses of confidential information onto the Web about the American war in Afghanistan and the American war in Iraq and the American prison at Guantánamo Bay and the American State Department. America, the most powerful country in the world, could not stop it. WikiLeaks was based in Sweden, beyond America’s control, although everyone in America with access to the Net could read what it published.

The new technologies justified their revolutionary possibilities by playing a part in the Arab Spring of 2010–11, which had the potential to be the most optimistic moment the world had experienced since the fall of the Berlin Wall in 1989. In Syria and Libya, they allowed the victims of closed societies to talk to the rest of the world. In Egypt, Facebook became a means of organising revolutionary protest. The Arab dictators knew the arts of torture and repression well. They could break the bodies and the will of their traditional opponents. They could not cope with the mobilisations of the young the Net allowed, because they had never experienced anything like them before.

The promise of the Net inspired politicians as well as activists. In the late 1980s, after the fall of the Berlin Wall, optimistic leaders and intellectuals believed that history was over and any society that wanted to be wealthy had to embrace liberal capitalism. In the early 2010s, optimists switched from political to technological determinism. They predicted that genocides would become impossible when all it would take to stop an atrocity would be for witnesses to alert the conscience of humanity by uploading videos from their iPhones to YouTube. They warned dictators who censored that they were imperilling economic growth by stopping their businesses accessing the sources of knowledge they needed to compete in a global market. Any society that wanted to be wealthy had to embrace freedom of speech on the Net.

With tyrannies tumbling and computing power guaranteeing the triumph of liberal values, why write a book on censorship?

I am all for liberal optimism, and hope a new world is being born. Before euphoria carries us away, however, consider the following scenarios.

• A young novelist from a Muslim family writes a fictional account of his struggles with his religious identity. He describes religion as a fairy tale and mocks the prohibitions of the Koran he was taught as a child as bigoted and preposterous. His writing shows that he does not regard the life of Muhammad as exemplary. Quite the reverse, in fact. If word of his work seeped out in Pakistan, the courts would charge him with blasphemy, a ‘crime’ that carries the death sentence. In Iran or Saudi Arabia, the authorities would arrest him, and maybe kill him too. In India, they would confine themselves to charging him with ‘outraging religious feelings’. In most Western states, prosecutors would not charge him with blasphemy, but he would receive the worst punishment the world can inflict on a writer other than depriving him of his life or liberty: no one would publish his work. He would find that although American and European countries do not have blasphemy laws that protect Islam, or in most cases Christianity, the threat of violent reprisals against Western publishers and authors is enough to enforce extra-legal censorship that no parliament or court has authorised.
  

• An African feminist comes to Europe and denounces its tolerance of the abuse of women in ethnic and religious minorities. Newspaper editors and television producers cannot get enough of her fresh and controversial voice. After religious fanatics murder one of her supporters and threaten to murder her, their mood changes. Intellectuals say she is an ‘Enlightenment fundamentalist’ who is as intolerant and extreme as the religious fanatics she opposes. Politicians and newspaper columnists complain about the cost to the taxpayer of her police protection and accuse her of bringing rancour to their previously harmonious multi-cultural society. No one bans her books, but her work inspires no imitators. She becomes a leader without followers, because women who agreed with her, and were prepared to support her arguments, look at the treatment she received, and put down their pens.
  

• Two bankers, one from New York and one from London, meet for lunch and discuss an issue that has troubled them both. Not one of the great newspapers that cover high finance saw the crash of 2008 coming. Nor did bloggers make it their business to find out about the risks their banks were running. The Net was as clueless as the ‘dead tree’ press. Insiders knew that the lust for bonuses and the pressure to accede to management demands for quick profits could have catastrophic consequences. But the information had never leaked. The two bankers discuss writing a joint article for the
  Financial Times
  or the
  Wall Street Journal
  exposing the continuing failure to address the structural problems in Western banking. They think that their intervention could improve public debate, but dismiss the idea as too dangerous. They know that if they speak out, their banks will fire them and they will never work in banking again. No other bank will want people marked as troublemakers on its ‘team’.
  

• A British newspaper reporter moves from the politics to the business desk. She resolves to start digging into the backgrounds of the Russian oligarchs who have set up home in London. She believes she can connect them to the kleptomaniac dictators the revolutionaries in the Middle East are challenging. She has criticised British politicians without fear of the consequences for years, but her editor turns pale when she talks about using the same tactics against plutocrats. The smallest factual mistake or unsupportable innuendo could lead to a libel action that could cost the paper a million pounds, ‘and we don’t have a million pounds’. She ploughs on, and produces an article that is so heavily cut and rewritten by the in-house lawyers no one can understand it. ‘I want a thousand words on trends in fashion retailing by lunch-time,’ the editor says when she starts work the next day.
  

• A member of the Central Committee of the Chinese Communist Party reads a speech by Hillary Clinton. ‘When countries curtail Internet freedom, they place limits on their economic future. Their young people don’t have full access to the conversations and debates happening in the world or exposure to the kind of free enquiry that spurs people to question old ways and invent new ones. Barring criticism of officials makes governments more susceptible to corruption, which creates economic distortions with long-term effects. Freedom of thought and the level playing field made possible by the rule of law are part of what fuels innovation economies.’ The old communist is a man who has trained himself never to show his emotions in case they reveal weaknesses to his rivals in the party. But he thinks of China’s booming economy and America’s fiscal and trade deficits, and for the first time in years he throws back his head and roars with laughter.