When the convictions came through in the court trial over the death of Baby Peter in 2009, I had my own small experience of trying to hold the line against the social media tide on a legal order of anonymity.
The courts initially ruled that the names of those convicted should be kept secret but there was a vociferous minority online who demanded to know their names and a smaller number who found out their names and spread them. As someone who had blogged about the case and was moderating comments on the piece over on Lib Dem Voice, trying to comply with with the court ruling required repeated intervention. I was happy to do so, for it was not hard to guess the reasons for the court order – either to protect other children, such as a sibling, or to stop a further related prosecution being prejudiced. (As it turned out, both of these reasons applied.)
What was also clear was that many people who wanted to know the names of those convicted or were happy to spread them had not stopped to consider these possible explanations and – in fairness to them – there was no ‘official’ communication to help explain why secrecy might still be needed. What put the court order under strain on the threads I was moderating was not the principle, but a failure to communicate.
More generally and more significantly, across the media an understanding of these likely reasons for the secrecy order meant that secrecy was supported by media outlets and prominent people. As a result, with some strains and rough edges, the court order was able to do its job.
The contrast with other cases such as Trafigura is stark. Without such wider support for secrecy in this and similar cases, the court orders did not hold.
In those cases the media and others used all sorts of nods and winks to tease out information without quite breaking the law whilst also making use of other channels – especially Parliamentary privilege – to get out information. These routes were all available in the Baby P case, but were not used.
That highlights the usually neglected dimension to maintaining secrecy, whether in the form of super-injunctions or traditional court orders.
What you need is not only the lawyers to get the legals right, but also to win the battle of public opinion as to why the information should be kept secret. Win that battle and the tools to undermine secrecy are left largely unused; fail to win it and they are deployed to the full.
In other words, don’t just pick up the phone to a lawyer – get your publicity and communications work right too.