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Transparently in Trouble

The current controversies about transparency, privacy and free speech raise very many issues:

  • the difference between the public interest and what the public is interested in
  • the relative access to justice of the rich and of the poor
  • the right roles of parliament and the courts
  • the balancing of privacy against freedom of expression
  • the awkwardness of laws designed for concentrated, national means of expression (newspapers) being applied to the internationally distributed technologies of the internet (Twitter).

Yet what all of these debates should take account of is the difference between the rights enjoyed by companies and those enjoyed by real people. There should be no presumption that a case for protecting the privacy of individuals is also a case for companies to be able to enjoy the same protection. Yet currently companies enjoy human rights, including privacy, in the same way as do people.

The injustice this can lead to was well illustrated by Trafigura. That company successfully, at first, sought to conceal information on its dumping of toxic wastes through a super-injunction (in which not only the underlying facts, but also the existence of the injunction itself is concealed). This kind of use of the law is merely an instrument of reputation management. It should never be allowed to trump the public interest.

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