This isn't about freedom of speech. It's about destroying lives

How’s your private life? Think about it. Is there anything potentially embarrassing there? Is there anything — maybe just one little thing about your sexual tastes or your internet habits or your relations with, or thoughts about, other people — that you would rather your partner didn’t know? Or the kids? Or your mother? Or the people at work? (more…)

Should we scrap superinjunctions?

This piece first appeared in the Observer

Ahead of tomorrow’s crucial European judgment on privacy and prior notification, we recap Max Mosley and John Kampfner’s recent privacy debate. Are court gagging orders on newspaper exposés an abuse of privacy laws by the rich, or a safeguard against tabloid intrusion into family life?

Injunctions are a necessary last resort

Hugh Grant’s covertly recorded interview with the former News of the World reporter Paul McMullan, contained this interesting passage about the ethics of intrusive journalism:

Grant: But celebrities you would justify because they’re rich?
McMullan: Yeah. I mean, if you don’t like it, you’ve just got to get off the stage. It’ll do wonders.
Grant: So I should have given up acting?
McMullan: If you live off your image, you can’t really complain about someone . . .
Grant: I live off my acting. Which is different to living off your image.
McMullan: Yeah, but you’re still presenting yourself to the public.

The debate about injunctions and superinjunctions, now enlivened by Andrew Marr’s decision to reveal his injunction in the Daily Mail, keeps this idea in mind. Why do newspapers want to know about the private lives of famous people? Not — let us be sensible here — because they abhor adultery and fornication or because they are exercising freedom of expression. No, I suspect McMullan was articulating a view held in many newsrooms: if you live by “presenting yourself to the public” you can’t complain about loss of privacy, and if you don’t like it you should “get off the stage”.

Though editors would never dare publicly to claim that they have an absolute right to know or publish everything that well-known people do in their bedrooms, that is what this view amounts to.

Marr doesn’t “live off his image”. He lives off his wits — having political knowledge, insights and contacts, writing history books and so on. Nor do Premiership footballers live off their images. They have to play football to quite a high standard. And Grant is right, too, in saying that he is a successful actor.

It is inescapably true, though, that all these people “present themselves to the public”: they have jobs that put them in the public eye, and they are seen on television and in other mass media. And for McMullan that seems to be enough. The victims don’t even have to be rich and they don’t have to have made any claim to moral leadership, or indeed leadership of any kind.

The loss of privacy, on this view, is a kind of tax the famous must pay on the privileges and status which they enjoy and the rest of us don’t.

Imagine you are an actor, singer, dancer, model, weather presenter, athlete or journalist, or an expert on gardening, decorating, fashion, history, relationships or cooking, or a politician, business leader, campaigner, trade unionist or even an academic, and you begin to achieve the kind of prominence that gets people on television or in magazines. Given the news values currently adopted by many newspapers, you need to be very careful.

Whether you are single or married, straight or gay, young or old, you need to think about whether your current private life might be worth a story for the tabloids, and in particular how it might be portrayed by people determined to make it appear lurid and unsavoury to such a degree you probably would not recognise it yourself.

You don’t just need to think about today but also about any time in the future so long as you may be on the public stage (and for some time after that), and also about the past. You need to think not only about yourself but also about those close to you (have you got children?), because they will be affected. You need to think about new people you meet, because they might be part of a sting. You need to think about others you have known, who might tell stories for money. You need to think, yes, about your phones and emails.

It’s nasty, but those are the rules. Accept them or get off the stage.

Or there is a third option. You might consider you were entitled to some protection against the self-appointed people who threaten you in this way. You might go to a lawyer and point at Article 8 of the Human Rights Act, passed by Parliament in 1998, which says [pdf]:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Yes, it says “everyone”. Rights are like that.

According to some, however, if you seek to protect yourself in this way you are invoking an infamous foreign-made law. You are appealing to “amoral” judges and lining the pockets of unscrupulous, freedom-hating lawyers. And, if you seek an injunction for any reason, you are resorting to the kind of gagging orders that make Britain almost a police state. Who says? The very papers that want to tell the world who you slept with last night and what exactly you did in bed.

Brian Cathcart teaches journalism at Kingston University London. He tweets at @BrianCathcart

The superinjunction rides again

This morning’s Guardian reports on what seems to be a piece of legal history.

A wealthy financier involved in a family dispute has made British legal history by winning anonymity in a libel case. This latest court attempt to censor internet material has led to claims that free speech is being further eroded in Britain.

The case is quite a murky one, apparently involving allegations of blackmail and sex offences. Nonethless, the precedent set must be cause for alarm.

Index Chief Executive John Kampfner commented: “This takes the epidemic of superinjunctions down a dangerous new path. Now they are being used not only to protect supposed privacy, but libel too.”

Gavin Millar QC adds: “Courts are increasingly granting anonymity to claimants where withholding details of evidence used to be regarded as sufficient. This case seems to be more of the same. Open justice is suffering.”

Read the full story here