1 Feb 2010 | Uncategorized
This article first appeared in Media Guardian
‘John Terry dumping toxic waste?” went one of the many wisecracks circulating on the internet after it was revealed that the Chelsea and England captain had failed in an attempt to gag reporting of his personal life. Until the widespread uproar over Trafigura‘s attempt to gag pretty much everybody last year, few people knew about superinjunctions. In fact, we still don’t. At a meeting of parliament’s joint committee on human rights last year, politicians asked the assembled journalists, lawyers and human rights workers how widespread the problem was.
How could we possibly know, given that neither the courts nor any public office keeps records? We can ask individual media organisations how many injunctions they labour under, but because they can’t tell us what the injunctions concern, we can’t collate accurately without risk of duplication in the figures. The best-educated estimates put the number somewhere between 200 and 300 superinjunctions at any one time in the UK.
It is a measure of how deeply the Trafigura fiasco affected the public psyche that much of the anger (and humour) directed at Terry online on Twitter and other social networks concerned his legal representatives Schillings’ use of a superinjunction, rather than his alleged extra-curricular activities.
But was Terry right to claim (anonymously, it turns out) that his Article 8 right to “respect for his private and family life” would be breached by publication of these allegations about this private life? One could argue that no one’s sex life should be subject to such scrutiny. But there is clearly an element of public interest when the England football captain is alleged to have been up to no good, especially one who was voted “dad of the year” by one poll last year. That said, Mr Justice Tugendhat did not straightforwardly rule that Terry’s right to privacy is trumped by the public’s right to know. He made it clear that “intrusive” material would potentially be subject to an injunction.
The judgment is not in the same vein as Lord Woolf’s in the case of the footballer Garry Flitcroft in 2002. The then Blackburn Rovers captain attempted to stop the People reporting on his extra-marital affairs with a nursery teacher and lap dancer. In a court of appeal ruling, Woolf declared that the prohibition represented an “unjustified interference” in press freedom. While this was seen by many as setting a precedent, Friday’s ruling follows a line defined by Mr Justice Eady in the case of X v Persons Unknown, where it was stated that some aspects of people’s lives are “naturally accessible to outsiders”. In other words, perhaps, some people know, and eventually more will know, so is there any justification in attempting to stop people knowing through legal means?
Tugendhat also stated that “in the language of defamation, the information would be capable of lowering [Terry] in the estimation of right-thinking members of society generally”. He was right to extrapolate that this alone is not enough to block publication, but the mention of libel points to something darker.
Article 8 of the European Convention on Human Rights enshrines the right to privacy. But Index on Censorship is concerned that this right is increasingly used as a pre-emptive alternative to a defamation suit. In some ways, a superinjunction works better than a libel suit: after all, in libel cases, the allegations must be published first, and there is a chance (though only slight) that the litigant may actually lose.
Meanwhile, ever more bizarre decisions are made: in France, Roman Polanski recently won damages in a Paris court after a picture of his wife, the actor Emmanuelle Seigner, was published. This may not seem unusual, but the picture published in Voici magazine merely showed Seigner walking in the street. The European Court of Human Rights set a precedent in 2004, when Princess Caroline of Monaco established that the publication of pictures of her grocery shopping was a breach of her right to privacy.
The increasingly aggressive pursuit of privacy actions is often an attempt to entirely dictate what is published about a person (or in the case of Trafigura, a corporation). Friday’s ruling, combined with Trafigura’s epic failure to suppress information, suggests that courts may be less willing to issue such injunctions in future. And perhaps sensible solicitors will be less willing to seek them.
1 Feb 2010 | Comment, News, United Kingdom
A significant victory against the superinjunction but the fight for free speech goes on says John Kampfner
This article was originally published in the Mail on Sunday
John Terry may earn himself a place in history as the man who brought to an end one of the most sinister tactics used to stifle free speech in this country.
He didn’t, of course, mean to do it. He employed the showbusiness law firm Schillings, which specialises in ensuring that individuals and media are discouraged from publishing information that might inconvenience its clients.
His lawyers obtained a superinjunction ensuring that nothing, repeat nothing, could be mentioned about his affair – even the existence of the injunction itself.
The superinjunction is a mighty tool that would do many a dictatorship proud. It has become a catch-all device simply to stop the media reporting facts that might embarrass companies or individuals.
The most outrageous example came last October when Carter-Ruck, another law firm that feeds off curtailing free expression, sought to prevent a newspaper from reporting a question in Parliament about a superinjunction granted to the oil trading firm Trafigura, which was alleged to have dumped toxic waste in the Ivory Coast.
The Trafigura case amounted to a direct attack on centuries of constitutional history and the supremacy of Parliament. Such was the popular outcry from ordinary people outraged at the censorship that Carter-Ruck was forced to drop the injunction.
In the Terry case, common sense has also, belatedly, prevailed. Mr Justice Tugendhat’s decision may presage a change of direction by judges who in recent years have bent over backwards to accommodate the wishes of those seeking to gag the media.
Tugendhat seems to be beginning to understand the extent of public misgiving about the state of affairs.
The balance between the right to know and the right to privacy – both enshrined in the Human Rights Act – had previously shifted hugely to the rich and powerful.
The seemingly inexorable march towards greater censorship in the UK reached its peak in 2009.
A combination of zealous law firms, sometimes cash-strapped news organisations and a public that is encouraged to think the worst of the media has created a situation where the right to know seems optional – unlike in America, where the First Amendment guarantees freedom of speech as an inalienable right.
The emerging privacy laws and the superinjunction were two of the more modern weapons of choice. The other one is more traditional – the law of libel.
My organisation, Index on Censorship, has been at the forefront of a campaign to change the laws of defamation.
British law (or rather English, as the Scottish system is a little better) has given us a pariah status. The US Congress is pushing through legislation protecting Americans from our courts, which have been allowing oligarchs, sheiks and others to sue people, often other foreigners, using England’s indulgent legal system.
This is known as ‘libel tourism’. For the lawyers it has been highly lucrative. The idea that our greatest ally needs to insulate itself from British judges and lawyers is excruciatingly embarrassing.
Politicians have finally begun to notice. Jack Straw, the Justice Secretary, has assured us that he intends to make significant changes even before the General Election.
This is not about the rights of journalists: We have countless examples of scientists, charities and individuals being sued, or threatened with being sued, for stating opinions or for bringing serious cases of abuse to light.
Invariably ordinary people have neither the stomach nor the cash to defend themselves against the predatory legal firm. Instead they choose to settle.
At least when people are sued, the public knows. The real outrage of superinjunctions is that nobody knows about them. Neither Government nor the courts apparently keep records and editors are not allowed to talk about them.
Estimates put the number currently in existence somewhere between 200 and 300.
It is a measure of the impact of the Trafigura fiasco on the public that much of the internet comment on John Terry revolves not around his peccadilloes but more about the misuse of the law.
This new ruling may suggest that courts may be more reluctant to issue such injunctions in future. But the broader assault on free speech is by no means over.
30 Jan 2010 | Events, Uncategorized
Britain’s theatre community comes out against oppression and censorship in the “last dictatorship of Europe”. Join the protest in London
Sir Tom Stoppard and actor/director Samuel West are leading a protest of high-profile theatre practitioners outside the Belarussian Embassy at 6 Kensington Court, London, W8 5DL on Thursday 1st July at 11.30am.
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29 Jan 2010 | minipost, Uncategorized
The decision today by Mr Justice Tuggendhat not to uphold a “superinjunction” claimed by England football captain John Terry is an important victory for press freedom.
“Super-injunctions have a disastrous effect on free expression,” said John Kampfner, Index on Censorship’s Chief Executive. “Celebrities are increasingly pursuing privacy actions in order to dictate what is published about them. Today’s decision recognises that the super injunction is a measure which should not be used lightly.
Index on Censorship is campaigning for libel reform, but the organisation continues to monitor the other ways the wealthy and powerful attempt to suppress information.
