22 Dec 11 | Uncategorized
Has what one might term the racist pendulum swung too far? From callous indifference to politically correct obsession? One asks the question, plainly, in the wake of the accusations made against Luis Suárez of Liverpool and John Terry of Chelsea. Neither is remotely a plaster saint. Each has what the coppers call form.
Terry has been heavily fined for coarse behaviour at Heathrow, jeering at American passengers devastated by the atrocity of 9/11, and famously urinated into a glass in a nightclub. Suárez, in the past, has bitten an opponent while playing in Holland for Ajax, punched out what would have been a winning goal for Ghana against his Uruguay team in the last World Cup and exulted when, having been sent off, the resulting penalty was missed. There seems no doubt that he called Manchester United’s Patrice Evra “un negrito”.
Well out of order, as they say, but was it really worth an eight-match suspension, plus (negligible for a football star) a £40,000 fine? Terry, meanwhile, is being prosecuted, not like Suárez by the Football Association but by the Metropolitan police, after a TV viewer reported his stream of alleged abuse against Queens Park Rangers’ Anton Ferdinand. Ferdinand says he didn’t hear it and Terry swears that it was taken out of context.
Long ago, I was the first senior football journalist to take up the cudgels on behalf of black players and have the short story to prove it. “Black Magic” concerned a young player discriminated against by a racist coach who had the last laugh when he joined another club and scored against his old team. Initially published in the Evening News, it was reprinted, to my delight, in the Voice.
My long-standing friend Paul Davis, a splendid black inside forward with Arsenal who should have played for England, has published a telling piece describing the racist abuse he first suffered when he himself was a young player.
I myself got into hot PC water when daring to say on an Irish radio programme that young black players from single parent families who suddenly found themselves millionaires had a difficult time of it.
“Gira e rigira”, it turns and turns again, as the Italians say. But why Alan Hansen should abase himself for using the word “coloured”, ask me not. We must all tread so carefully.
Brian Glanville is a football writer and novelist. He is a columnist for the Sunday Times and World Soccer. His novel, The Rise of Gerry Logan, recently republished by Faber, was described by Franz Beckenbauer as “the best football book ever written”.
16 Mar 11 | Uncategorized
When the Guardian’s director of editorial legal services, Gillian Phillips, spoke at an industry conference 12 months ago, there were no written judgments on privacy injunctions apart from Terry. Since then the field has developed significantly, giving Phillips plenty to draw on, for a talk about the rise of the “super injunction”, at this year’s IBC Legal Defamation & Privacy event.
They may have first entered British public consciousness when Guardian editor Alan Rusbridger drew attention to “so-called super injunctions” in 2009, but the first order Phillips found in their files that “looked super injunctiony-ish” originated in March 2007. Schillings had served a privacy injunction for Britney Spears, against two newspaper groups.
Britney Spears was probably the start of a gradual change in the way these injunctions were obtained, Phillips said. The next significant one was granted in November 2007 for Northern Rock against the Financial Times. But there was still no “super” element, ie. a ban preventing reports of its existence.
May 2008 saw an anonymous set of initials, but as far as Phillips could tell it wasn’t a super injunction because it didn’t prevent mention of the order. However, it was against persons unknown, which became “a bit of a trait” because it meant no one was there to argue the other side.
Phillips’ first anonymous super injunction came about in February 2009, which included prevention of reporting the proceedings. For legal reasons, she couldn’t say much more.
Then came Trafigura, Terry and many more. In her overview, Phillips described the basic principle of open justice.
“Every time the court anonymises or holds something in private, makes an order saying you can’t report it, all those things are derogations from that fundamental principle.
“There is no doubt that those derogations can only be made where they’re strictly necessary. For a long time, the courts seem to have forgotten that and the claimants and those representing them seemed to have forgotten that and these things were effectively going through on a rubber stamping exercise.”
Where next? Phillips flagged up Mr Justice Eady’s comments in a speech in November 2009 in which he foresaw the possible development of a general tort of reputation, where the public interest becomes the overall guiding principle and the fact that something is true does not necessarily amount to a defence [PDF link]. “Alarm bells [are] ringing for all of us,” she added.
Looking to Europe, Max Mosley still awaits the judgment on his application for prior notification. A second Von Hannover case is currently going through the European Court of Human Rights, which raises a number of issues about privacy and the relationship with defamation.
The super injunction committee, formed by the Master of the Rolls, and made up of claimant solicitors and in-house media defendants, as well as members of the judiciary and counsel, is in the process of preparing a Report, Guidance and a draft pro-forma order. The body is still meeting, but is hopeful of producing a final report before Easter.
In the meantime there are three “‘super injunction type” cases due before the court of appeal in the next few months, WER, KGM and WXY, which might provide “a bit more light coming out of the tunnel”.
03 Feb 10 | Uncategorized
On this morning’s Today programme former Formula 1 boss Max Mosley reiterated his call for individuals to have a “right to notification” before newspapers published allegations about their private lives. It was a fascinating interview, and well worth a listen here.
Mr Mosley, who won £60,000 in damages from the News of the World after it alleged he had been involved in a “Nazi orgy” is to deliver a speech on whether the press should be allowed to publish details of a public figure’s private life.
Interviewed by Today presenter John Humphrys, Mr Mosley said that individuals should have a “right to notification” before any allegations are printed about them. “so that if you wish you can go to a judge and if you can convince the judge he’d stop publication”.
Mosley added that he felt there was “no public interest” in the John Terry case. Mosley will be debating this issue tomorrow evening at an event titled Gagging the press: Is the public bound to suffer?. The discussion will be chaired by Lord Justice Moses. Other speakers include Guardian editor Alan Rusbridger and Index on Censorship trustee Sir Ken Macdonald QC.
Mosley’s proposal raise some interesting questions about the right of reply, legal fees etc, which we will be back to discuss later.
01 Feb 10 | 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.
