Pictures of women in states of undress
May 23, 2011 § 15 Comments
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”
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?