It’s a rather old media trick to invent a scandal. The press leads with reports of, for example, “pressure is mounting on x to resign”. It doesn’t matter that the pressure does not exist; by publishing the story, the media invent the pressure and the prophecy is self-fulfilling.
I can’t help but feel the same about the coverage of so-called “superinjunctions”.
I am not insensitive to the very real damage caused by marital infidelity. But I appreciate that some cases are more complex than the media gives credit. I also do not buy for one second the media’s claims to be guardians of morality. There is a suggestion that when you print a story about marital infidelity, you normalise the behaviour. If you really were interested in preserving the sanctity of marriage you’d be withholding the information, rather than circling like vultures over a dying relationship. I really don’t see how sensationalist media coverage of marital crises helps anyone in the relationship.
The kiss and tell is at heart a grubby commercial transaction. It has very little to do with morality and everything to do with money. Women knowingly sleep with married men, then pit them against the press in a bidding war for the story. The woman is usually not interested in “speaking out”; if the celebrity is the highest bidder the story stays hidden until the next round of blackmail. Nobody involved looks good.
There is, as always, scope for debate on where we draw the line between the Article 10 right to freedom of expression and the Article 8 right to home, family and private life. Unfortunately, as usual, that debate is being muddied by a self-interested media.
It’s worth understanding, in this context, what an injunction is.
An injunction is simply a court order for someone to do, or not do, something. An interim injunction is one you get pending the final decision of a case to preserve your position. A superinjunction is simply a particular type of injunction whose terms forbid you from even saying that the injunction exists.
To give a playground example:
- Injunction – “Do not play with the claimant’s toys.”
- Interim injunction – “It is not clear whose toys these are. Until we decide that, nobody is to play with them.”
- Super Injunction – As with 1 or 2, but also: “Don’t tell anyone that this injunction exists, because if you do so the whole point of the injunction will be defeated.” (admittedly that doesn’t work with the example I’ve given, but hopefully you get the idea).
Unfortunately, this distinction appears to be lost on most commentators. “Superinjunction” has suddenly become a term of abuse used by people to decry any kind of privacy injunction. Most of the stories the media are running with are not superinjunctions. If they were there wouldn’t be in the papers. Most of them are in fact interim injunctions designed to protect the applicant’s privacy until such time as the case can be fully argued.
It’s a holding position: if you print the story now and the claimant wins, they can’t get back their privacy. If you don’t print now but you win at trial, you still have a story that will sell your papers as it will have been subject to an effective embargo. The point being that the cases are often too complex to immediately be settled in an interim application and instead full argument should be heard at trial. Given the level of controversy in this area, you would think that people would want to be able to have the fullest argument possible rather than just letting the media have their fun.
The cases currently under discussion are interim injunctions that simply delete the names to preserve the privacy of the claimants. That was done, I am told, to accommodate press concerns about being prevented from saying anything at all about a story. In other words the judiciary accepted that superinjunctions might be too restrictive, and opted for the least restrictive order possible, balancing the media’s rights against the claimants’, as the Human Rights Act requires them to. They get the story, they just don’t get all the names.
Given that the media have then used that opening to try and undermine the injunctions in their entirety through ‘jigsaw identification’, you might conclude that this was a concession too far. It might even leave you thinking that the only way to prevent the media reporting the story is to not even let the injunction be the story.
This “debate” is not helped by a lot of myths being spread. First, that privacy law injunctions are solely the preserve of rich men. They aren’t. The reason injunctions are being used to protect the affairs of rich and famous (not necessarily important) people is that they are the ones the press write about. Nobody cares if some bloke I know down the pub is cheating on his wife. It wouldn’t sell any papers. By contrast a story about a celebrity love-rat will sell loads. As we’re seeing with the discussion of Jemima Goldsmith’s privacy injunction (again, not a superinjunction, and horribly misreported) they’re not the sole preserve of men. Indeed in that case the celebrities were the ones named, and it was the defendant who was anonymous (with the Goldsmiths’ agreement).
The pricing is also misleading. You can get a privacy injunction, indeed a superinjunction, for vastly less than the £200k figure being thrown about. The costs only rack up that high because, if you have a lot of money, you’re going to get expensive lawyers. The press themselves take on expensive lawyers and are not above using that fact to intimidate people into settling. But the basic cost of getting an injunction is low.
This mythmaking is not helped by John Hemming MP, who jumped on the bandwagon very effectively to further his own, separate, agenda against social services. His case in fact isn’t a superinjunction at all. I would recommend you look at Head of Legal (see here, here, here and here) and Ministry of Truth for more information on this.
The two injunctions that are at the centre of this outrage are less troublesome when you bother to look at them in detail. The first case, OPQ, the injunction contra mundum, is relatively straightforward. X took intimate photos of Y and threatened to sell them to the papers unless Y paid her off. That is a “straightforward and blatant blackmail case” and a criminal offence. Moreover intimate photos are “clearly private”. Moreover there was ‘solid medical evidence’ that publishing would have a serious effect on the health of the Claimant and his family. In that situation granting the injunction looks like common sense.
In the other case, ETK, much has been made of the emphasis on the effect of publication on the children. This is a potentially novel approach to the issue but not surprising when you look at the judgment. In essence we have signed up to so many treaties protecting and promoting the rights of the child that the court was required to protect and promote the rights of the child. The underlying assertion that the kids should just be left to be bullied and the press aren’t in any way responsible for it make one a little uneasy. This especially so given the experience of a case I will come to in a moment.
Why, then, is the media getting all wound up if the situation is more favourable than they make it look? It has something to do with Max Mosley. You will recall that he was accused of taking part in a “SICK NAZI ORGY” and of mocking holocaust victims, despite there being no evidence of any Nazi element.
The consequences for Mosley were personally devastating. His son, a recovering drug addict, suffered a fatal relapse from the pressures of the story.
Unlike many such cases though, rather than taking matters passively Mosley went on the offensive and won substantial damages from News Group Newspapers for the invasion of privacy. The case is worth reading in full to get an understanding of just how the celebrity exposé story works, and how far removed it is from the morality the press profess to uphold. Mosley won, and has pursued his case to the European Court of Justice. In particular, he wants the press to notify the subjects of the story before they publish, to allow them time to consider their legal position. The case is to be decided this week, and the press fear that it will go against them. Consequently they are whipping up anger by conflating a number of different issues.
It’s also worth considering this: I have encountered numerous people who are quite happy to break the terms of the injunctions discussed here. I have not named a single one of them. If I did I suspect they might be rather angry. Perhaps because they feel they had a reasonable expectation of privacy when they spoke about it. If that’s how they feel, then perhaps the law of privacy isn’t as bad as it sounds?
As always, your thoughts and opinions are welcome. If, however, you try to break the terms of any injunction, your comments will be either redacted or deleted.
