11 Mar 11 | Uncategorized
The Financial Times leader today cuts right to the heart of the debate about privacy sparked by Sir Fred Goodwin seemingly bizarre injunction, which it is alleged prohibits the press from identifying the former RBS chief as a “banker”:
Super-injunctions, which forbid journalists from reporting that they have been granted, as well as preventing disclosure of the information that is their subject, have become increasingly popular. They are a menace to democracy and should be scrapped.
It is clear that there is a balance to be struck between the right of an individual to a private life, and people’s right to be appraised of matters that are of public interest. But of late, driven by a series of rulings based on Article 8 of the European Convention on Human Rights, the pendulum has swung too far in favour of greater privacy.
Sections of the press have done themselves no favours by intrusive reporting of private matters whose disclosure is not in the public interest. That is regrettable. But it does not alter the fact that the public has a right to be able to make informed choices about those whose actions make an impact on their lives. Information is the life-blood of democracy. Too often, super-injunctions are a tool used to thwart this, protecting the rich and powerful by enabling them to gag the press
The piece goes on to suggest the need for a properly drafted privacy law. Of course, the fear could be that a statute privacy law could be even harsher on the press than the current situation is.
11 Mar 11 | Uncategorized
The Financial Times leader today cuts right to the heart of the debate about privacy sparked by Sir Fred Goodwin seemingly bizarre injunction, which it is alleged prohibits the press from identifying the former RBS chief as a “banker”:
Super-injunctions, which forbid journalists from reporting that they have been granted, as well as preventing disclosure of the information that is their subject, have become increasingly popular. They are a menace to democracy and should be scrapped.
It is clear that there is a balance to be struck between the right of an individual to a private life, and people’s right to be appraised of matters that are of public interest. But of late, driven by a series of rulings based on Article 8 of the European Convention on Human Rights, the pendulum has swung too far in favour of greater privacy.
Sections of the press have done themselves no favours by intrusive reporting of private matters whose disclosure is not in the public interest. That is regrettable. But it does not alter the fact that the public has a right to be able to make informed choices about those whose actions make an impact on their lives. Information is the life-blood of democracy. Too often, super-injunctions are a tool used to thwart this, protecting the rich and powerful by enabling them to gag the press
The piece goes on to suggest the need for a properly drafted privacy law. Of course, the fear could be that a statute privacy law could be even harsher on the press than the current situation is.
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.
