Once upon a time, not so long ago, there was a naive belief that the World Wide Web would improve the standard of public discourse. In the area of law, for example, the notion was that direct and free access to primary materials like legislation, judgments and sentencing remarks would inform and enhance discussions of cases in the news.
Such unfettered ready availability contrasted with what went before, where these materials were the preserve of the few, not the many, stored in inaccessible law libraries and, if you were lucky, the larger public libraries. The physical barriers to legal knowledge and understanding disappeared: everyone could look at accurate and reliable legal materials for themselves.
And to supplement these immediate resources would be a squadron of volunteer bloggers and other social media users—practising and academic lawyers, law students, lay enthusiasts and even retired judges—to explain and analyse the news in source-based posts without cost to the reader. It all seemed so very promising.
But this now appears to have been overoptimistic. The links to cases and other materials are there, but unclicked. The free commentary which still is offered has little or no traction. Opening up the world of law to public view has been met by a general shrug.
A quote attributed to GK Chesterton (but probably invented by journalist Malcolm Muggeridge) says that when people cease to believe in a god they do not then believe in nothing, but in anything. The explosion of information available online—content, data, hot takes—has not led to nihilism but an “anything goes” environment, where facts are what you want them to be.
And so we have strong views being shared and multiplied online about legal cases and other legal materials which have no connection with what those cases and other materials actually say. As such, they have ceased to be about what the law says but are memes instead, with an internet life of their own.
Take two recent examples in England. One is a criminal case, another a civil planning case. Neither case, from a legal perspective, is especially exceptional, though both have interesting features. But you would not know anything accurate about these cases from how they are discussed online.
The criminal case is that of Lucy Connolly, which the Weekly Constitutional blog covered here. The defendant pleaded guilty to a serious offence for which parliament had provided a high maximum sentence (of seven years), and she received a sentence significantly below that maximum (of two years and seven months).
Given the charge, and given her guilty plea, and given the maximum sentence set by parliament, there was little scope for the sentence to be any less. Indeed, the sentence could have been higher but for her guilty plea, which gave her a discount.
But you would not know this from the internet discussion and wider political debate. The fact she pleaded guilty is hardly mentioned, and what she published is often not quoted in full. The case is a cause célèbre without regard to what the court actually said and did.
The UK judiciary were quick to publish both the sentencing remarks and the court of appeal judgment for this case, but you will find they are rarely linked to in the mass of online discussion about Lucy Connolly.
There are points of concern about the case. The Crown Prosecution Service may have overcharged her with this offence because of the relevant public disturbances, when lesser charges were available. There is also little evidence that her infamous tweet had any effect in the time it was published before it was taken down.
Furthermore, parliament should face hard questions about the law and the sentences for this and other speech-act crimes. And if the defendant was innocent, then she could have pleaded not guilty.
But none of these points of concern would change what a judge could do with a guilty plea for this particular crime, and yet it is the judge’s sentence which is central to the online and wider discussion. The actualité of the case yields to the meme case.
The civil planning case is, of course, the one about the Epping hotel. Here, the court at first instance granted a temporary injunction to a local authority that would restrain the use of a hotel to continue to house asylum seekers, pending the hearing of the full case.
That such a temporary injunction was granted was odd. Temporary injunctions are there to “hold the ring” before a case can be heard fully and properly at trial. In coded lawyer-speak, it was an “eccentric” decision by the judge.
The rules and principles for such temporary injunctions are long-established, and the applicable “balance of convenience” test in such a case would not normally point to occupants of a property being ejected a few weeks or months before the full trial.
The court of appeal discharged this remarkable injunction, explaining that the balance of convenience test meant that the occupants should continue to be accommodated pending the full trial. The appeal judges have been criticised widely for their supposed political bias. But the determination of this appeal did not need a politically motivated bench of judges, just a competent one.
Again, the court of appeal was quick to provide a specially prepared summary of its reasoning in order to inform the public. This does not normally happen, but it was done in view of the interest in the case. But the court of appeal may as well have not bothered for all the effect this summary has had on the online and media-political frenzy about the case.
In the summary, the court says: “We should say at the outset what this appeal hearing is not about: it is not concerned with the merits of Government policy in relation to the provision of accommodation for asylum seekers, in hotels or otherwise.” The “not” was even underlined, which is rare in a judicial document.
The court could have put the “not” in bold and italics, flashing on the page. It would not have made any difference. Few are interested in what the case was really about. They are interested in the stories they want to hear and want to tell about the case. The actual judicial reasoning is irrelevant.
None of this is to say that there is no inherent value in providing access to reliable and accurate legal information. Such provision is a public good and it should be done regardless of any perceived lack of utility or even effect. Perhaps online commentary by bloggers and others is also a public good, despite the online headwinds going against them.
But what these two (and many other) meme cases show is that free and ready access to accurate and reliable information is not by itself a panacea. This is true for medicine and science and other things as well as law. People are rarely interested in the facts, even when they protest that they are.
People instead prefer stories that affirm their views of themselves, and of others, and of the world around them. The challenge for those who want to place the discussion of law and policy (and other things) on a sounder basis is to find ways to make people care about the actualité of the case rather than the meme case.
