Pictures of women in states of undress

May 23, 2011 § 15 Comments

Twitter bird, in grey

NOTE: Until the injunction is formally lifted, this blog — and that means the comments too, please — will be observing it, because we’re skint and could do without even the vaguest scintilla of the faintest iota of the vanishingest sliver of the possibility of any bother. Ta.

Injunctions have a legitimate and important role in the justice system: they allow a court to order that an individual or corporation do, or not do, something where it is deemed important to attempt to retain the status quo, rather than allow events to unfold and make subsequent reparations. Injunctions are available in case of harassment, of stalking, to prevent physical assault, and myriad other cases where pre-emptive intervention is deemed necessary.

In this case, of course, the question is one of privacy. To be clear, CTB did not take out a “superinjunction” — that is, an injunction that forbids the discussion of the injunction — but simply an injunction to prevent publication (which would normally be called a gagging order were injunction not the rallying phrase du jour). And it was granted on the basis that to allow publication would be to violate CTB’s right to private life under Article 8 of the European Convention on Human Rights, which was incorporated into UK Law under the auspices of the Human Rights Act.

Article 8 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence. … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law”. It is a qualified right; that is, a right that is not a matter of course in all cases, but that is to be weighed against other qualified rights, in this case the right to freedom of expression, as enshrined in Article 10.

In the first published judgment, on May 16, Mr Justice Eady sets out that the evidence in front of the court appeared to show that (a) there may have been an attempt at blackmail, (b) that there was in any case serious contradictions in the accounts of CTB and Imogen Thomas. He also notes that Thomas has not submitted a sworn statement in support of her account, and that the newspaper has made no attempt to claim that publication would be in the public interest. He then goes on to describe the two-step consideration required. First, is the subject matter of the threatened publication such that it gives rise to a reasonable expectation of privacy? In this case, Eady concludes, the answer is patently yes; it was a private affair, conducted out of the public eye. Second, if so, are the rights under Article 8 of the applicant outweighed by the rights under Article 10 of Thomas and the associated journalists?

The key points of the judgment in this regard are as follows:

It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish what has been described in the House of Lords as “tittle-tattle about the activities of footballers’ wives and girlfriends”

and

It has recently been re-emphasised by the Court in Strasbourg that the reporting of “tawdry allegations about an individual’s private life” does not attract the robust protection under Article 10 afforded to more serious journalism.

As such, attempts by the media to draw a connection between this case and, for instance, the Trafigura superinjunction, are breathtakingly disingenuous. For a start, the Trafigura case did not hinge upon an individuals right to privacy; it was a shameless and naked attempt by a multinational corporation to conceal illegality on a vast scale. The public interest was obvious, and whatever the basis for the granting of the injunction was, it cannot have borne any relation to the CTB injunction

For a second point, the superinjunction in that case was working in the opposite direction. The Guardian were prevented, briefly, from reporting a parliamentary question. As such, the question was: should the press be prevented from reporting what goes on in parliament? The answer, intuitively, is no. In this case, the question is: should the press be prevented from reporting whatever they want, without regard to the rights of the individuals involved? Here the answer, I would suggest, is “it depends”.

And finally, look to the second quote there. “Serious journalism”. While this is a vague term, I can’t see any way in which this constitutes serious; indeed, it’s a pretty decent definition of frivolous: MAN YOU PROBABLY HAVE HEARD OF SHAGS WOMAN YOU MIGHT HAVE HEARD OF, NOT WIFE. HE SEEMED SO NICE, TOO. Trafigura was about an attempt by corporate power to control the free relationship between a country, its media and it parliament. This isn’t fit to mentioned in the same breath.

The issue of footballers and injunctions first reared its head after John Terry, infamously, acquired one in relation to the allegations that he and Vanessa Perroncel, ex-girlfriend of his then teammate Wayne Bridge, had had an affair. There was at least, in this example, a flimsy pretence toward public interest, in that Terry had been actively promoting himself as “Dad of the Year 2008”, and seeking to profit from that, a position that would presumably be compromised were he to be found in a compromising position.

But crucially elided from the whole shebang was the simple fact that the allegations were entirely without foundation. Both Terry and Perroncel have always denied them, and there was, and still is, no other proof. Eventually, two of the newspapers were forced into an apology, a public acknowledgement, tucked away in the inner pages [paywall/Murdoch], that the story was baseless. The climbdown wasn’t, you’ll be shocked to hear, widely reported.

Let’s be very clear about this. Newspapers, particularly the smaller ones with red mastheads, will lie to make money. Constantly, at great length, in great detail, repeatedly, again and again and again. Ask Kelvin MacKenzie, or Piers Morgan. Ask Paul Dacre, or Richard Desmond, or Richard Desmond again. It’s not just about celebrities, either, and not just for front pages; I commend you all to this astonishing story of a woman who was royally stitched up by the Daily Mail for what appears to have been a fairly light feature article. Newspapers do not exist to tell you the truth. They exist to make money for advertisers. If they can do so with true stories, excellent; if not, never mind.

The only people that know the truth about this particular kiss-and-tell are, of course, Imogen Thomas and CTB. We don’t, and the papers, we can be sure, are only interested in telling us as far as it shifts units. Of course, what really sticks in the craw is that there is a genuine issue with the use of privacy orders: however distressing it is that “Trafigura” has become a byword not for corporate manslaughter but for a press freedom issue, it was nevertheless a scandalous use of an injunction. And even the case of Fred Goodwin’s recent injuncted and alleged infidelity, given that he was heartily rogering the country at the time, demands scrutiny.

But not, please, another dispiriting session of FAMOUS MAN PLAYS HIDE-THE-SAUSAGE. Because we know that News Group didn’t charge into court to defend the noble traditions of investigative journalism; I reiterate, there was no attempt to claim any kind of public interest. This is about the right of a select group of individuals to continue to make money by shovelling shit into your mouth. Every column inch wasted on a kiss-and-tell is one not used for anything more newsworthy, which is essentially everything.

When the liars tell you they’re protecting your right to know the truth, they’re lying. They’re protecting their own right to make you pay for irrelevant nonsense. Don’t eat shit.

—————

A coda. The issue of “access to justice” is, of course, a serious one; it is a scandal that the rich are able to seek protection from the courts that the poor cannot. Quite why the solution to this is to deny that protection to the rich as well is unexplained; indeed, it’s classically counterintuitive, like solving the problem that some people can’t afford a toll by blowing up the bridge. The real scandal is the war waged by successive governments on the legal aid allowance, ensuring that the vast majority of the country is marooned from their legal rights. But enough about that. Would you like to see some tits?

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§ 15 Responses to Pictures of women in states of undress

  • Jude Ellery says:

    Didn’t know that about the Terry case – but… It did happen, right? Why else would there have been the non-handshake, and the Team Bridge t-shirts, and Tevez getting all up in Terry’s face?

    • Graham says:

      Wayne Bridge believing it had happened is not the same thing as it having actually happened though, no?

    • twistedblood says:

      Even if it did happen, the point is that papers had no foundation for what they printed. A story without evidence is guessing, whether it’s right or wrong.

  • Alex L says:

    For me, the real issue is not so much the ‘right to privacy’ (which I thought was based on the right of the individual for privacy from the state, not the right to privacy from other people) but the fact that a footballer can prevent someone else from going to the press, i.e. suppress her rights (and ultimately the rights of the press) to freedom of speech.

    If a paper publishes a false story then they can be sued for libel – this is the proper recourse. The media should be forced to make more well seen apologies (perhaps by publishing the apology in the same size font as the original story) but that is a different matter.

    One last point – the alleged blackmailing. Interesting that no proof was offered yet many see IT as guilty as charged (incl. the judge). Surprise surprise the man who is paying the huge lawyers fee’s gets the benefit of the doubt from the judge.

    • twistedblood says:

      The point is that the right to freedom of speech (or expression, as the law has it) is a qualified right, that needs to be balanced against the relevant rights of others. In this case, the right to a private life.

      Truth or falsity doesn’t come into it. The media don’t simply have the right to publish anything that is true where it violates, or may violate, the rights of somebody else. And the point of this injunction is not that the allegations are or are not false (Eady is careful not to draw a conclusion on that) but that CTB’s right to privacy outweighs the right of Thomas/News Group right to publish. His conclusion is based on precedent both from the House of Lords and from Strasbourg, as you can see above, and on the complete lack of any public interest argument.

      On the alleged blackmail, again, Eady doesn’t say if this is true or false. He describes it as “uncontested”, meaning no contradictory sworn statement has been submitted to the court. It’s not about benefit of doubt, but about admissible evidence.

    • The right to a private life covers more than that. You have the right to have a gay relationship in secret because your local community may bully you for it. You have the right to tell your employer that it’s none of his business what you do outside of work (providing it doesn’t affect your ability to do your job or the company’s reputation). And – yes – I would say that just being “famous” is not an excuse to print all sorts of stories about someone’s private life.

      However. If you sleep with someone who you know is only famous for his/her ability to a) sleep around and b) get in the papers, then what do you bloody well expect is going to happen? Then, if you take out legal measure after legal measure to gag the press, is it any wonder that the backlash is even greater?

      I’m not sure where I stand on this, really. On the one hand I don’t think this footballer in question has consistenly gone around hard-selling fizzy sugar water, athletic apparel or his own perfect family life. He’s pretty quiet, very professional, and stays (relatively) out of the public eye. It would be very different, I think, to report on an affair by Paul Scholes than it would David Beckham. I think most people would at least understand that argument.

      But on the other hand, I return to the whole “you slept with a known publicity whore”. I would also argue that this went on for months. This isn’t a moment of weakness with a work colleague, a drunken mistake or anything of that ilk. It’s a long affair (or so we are led to believe), and a long act of deceit culminating in tying up the courts with injunctions.

      So, I’m pretty much in the middle. All I do know is that this might affect this player’s legacy. And that would be a real shame.

      • twistedblood says:

        But the consideration of the judgment is not just of the player but of his family. Ultimately, I think the point that Eady is making (and that Tugendaht has upheld) is that if something is private — and it’s crucial to her version of the story as well as his that it was private and meant to remain that way; that she was surprised by the press — then the press don’t automatically get to publish it if they discover it.

        Whether it was months (as she says) or a few occasions (as he does) isn’t really the point.

      • Alex L says:

        Does said footballer receive money for ‘image rights’ or advertising (or his yoga DVD)? How If so does this bring his private life into ‘public interest’?

        It seems to me that as soon as you are trading off of your image, you become fair game.

        Will it tarnish his legacy? – the original story definitely would not of (people are still cheering for Tiger Woods) but his subsequent actions may have further repercussions. He will forever be known as the man who opened up the debate on privacy, a difficult task considering the previous holder of the title had an s&m orgy with a group of prostitutes.

  • Well written article. I totally agree with all of your sentiments. This is not about freedom of speech but rather about freedom of gossip. We are not dealing with something that is in the public interest but rather something the public are interested in which is a comletely different matter. CTB has not been hypocritical as CTB is not somebody who has courted publicity speaking out against infidelity or tried to benefit from a public image off the football field.

    I wrote a similar article a few weeks ago (when most people already knew who CTB was)at http://itsnotlifeordeath.blogspot.com/2011/04/does-it-matter-if-our-footballing.html also defending the right to privacy.

    Let him who is without sin throw the first stone – that’s not me for sure!

    • twistedblood says:

      Cheers. Nice piece. And excellent point on role models.

      I have had to throw away my “What Would CTB Do?” wristband, which is something of a wrench.

      • I’ve invested in a ‘What would a journalist do?’ wristband – you’d be amazed what it lets me get away with. I can now have a clear conscience about having no conscience!

  • Mark says:

    Completely agree with this. The tabloids are a disgrace and the sooner they are put on a leash the better. It’s indicative that they’re going after a kiss-and-tell injunction rather than one with a genuine public interest angle.

    The press claim to be voicing the views of the public whereas they are actually moulding it. People repeat the freedom of expression line without realising what it is they are actually asking for.

  • As ever, bang on the nose and good to offset accusations of Manchester United sympathizing by defending John Terry. If the gutter press aren’t odds on winners to scoop our site’s 2011 Crimes against Football award then Jack Rodwell has had a stunning season.

  • Suzy says:

    I hear a lot about CTB and the woman scorned and the presses rights, What about the Wife’s rights??? no one has given her a thought, she has done nothing wrong in all this, CTB & that whore has hurt her enough, what about her rights and feelings? The gutterpress are just Gossip mungers. The wife doesn’t need to see it plastered all over the papers or written in a book by the homewrecking whore, or the public. The wronged party should come first in this case and any affair case, and no press or book deals should be able to be written and money made off hurting somebody so deeply. The press are disgusting in this country they see themselves above the law and print anything about anyone they want and it’s wrong. I don’t believe CTB was hiding himself behind the injunction but trying to spear his wife more hurt. As for image & making money from his image that won’t change it didn’t for David Beckham or many others before him. Freedom of speech my arse, freedom to gossip and bully. #GUTTERPRESS

  • […] The importance of not believing everything you read about superinjunctions. [Twisted Blood] […]

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