He-Who-Must-Not-Be-Named
by Emma Garman
In the globalized digital age, attempting to suppress a faintly titillating story is tantamount to launching a multi-pronged campaign to publicize it, only more humiliating. Troubled times, then, for UK celebrities with peccadilloes they’d like to shield from the nation’s eyeballs, as the international media frenzy over a famous husband’s classified threesome proves that, more often than not, obtaining a press injunction is an obscene waste of money. In the US, the idea of muzzling the press is, of course, constitutionally anathema, and would be considered prior restraint. Not so across the pond, where since around the turn of the century, a quirk of law has meant that anyone with sufficient means can, by making a legal claim of privacy invasion, kill an embarrassing or damaging article before it is published. But, to quote neuroscientist Dean Burnett, “if people are aware that something is kept from them, they will be considerably more motivated to actually see it.” And seeing it, whatever it is, hardly presents a challenge when the crowdsourcing of information online is so effective, not to mention essentially lawless.
Nonetheless, the declarations that emblazon the websites of Britain’s leading “reputation management” law firms are as confident as ever. “DEFENDING REPUTATION, DEMANDING PRIVACY” yells the home page of celebrity-injunction pioneer Schillings, while Carter-Ruck — whose endeavors to prevent people in England and Wales from hearing about that threesome were of barely any avail — touts “a discreet service to protect our clients against the publication of intrusive information about their private and family lives.” Perhaps the Carter-Ruck legal eagles who agreed to seek this now-legendary gag order were too dazzled by innumerable billable hours to remember that, what with the invention of the internet, “intrusive information” is not restricted by geographical borders. Otherwise, it’s difficult to imagine how anyone — let alone an expert in the field of privacy law — could not have foreseen the whole affair unfolding precisely as it did. Rarely has the Streisand Effect manifested more powerfully, yet predictably.
When a celebrity pays to keep something out of the public domain, onlookers’ motivations are fueled by more than mere curiosity. A survey of the current debate elicits comments along the lines of: I don’t care about a consenting adult’s sex life, so would have paid no attention to this story, but I do care about preserving an unfettered press/about unelected judges wielding excessive power/about the wealthy denying free speech to their poorer fellow citizens/about a tiny elite having access to legal protections unavailable to the vast majority (the cost of bringing an injunction, after all, can run into hundreds of thousands of pounds).
A key facet of the debacle is that, contrary to some reports, Carter-Ruck’s client did not obtain a super-injunction — which, as well as barring the publication of the names and details of a given case, bars the very fact of its existence being reported — but an anonymized injunction. This allows the general outlines of a gag order to be written about with names removed, leading with swift inevitability to everyone’s favorite Twitter game: Name That Celebrity. The mainstream media, meanwhile, will have fun by conspicuously writing about the relevant personages in other, non-litigated contexts. Venerable gossip site Popbitch — itself the proud recipient of a stern letter from Carter-Ruck — has provided this invaluable guide to the clue-dropping techniques of journalists. “Nothing,” they observe, “brings the brotherhood of journalism together quite like a celebrity injunction. Especially as a whodunnit story is likely to up your own page views off the back of one of your rival’s legal bills.”
The term super-injunction was first used by the Guardian, in October 2009, to describe the draconian suppression of their investigation into Dutch oil trader Trafigura’s toxic waste dumping in Abidjan in Ivory Coast, a catastrophe that caused sickness, injury, and death in the local population. The legal action — brought by Carter-Ruck on behalf of Trafigura — was anonymously named, the court documents were sealed, and the Guardian was forbidden from publishing a single word about it. It was thanks to Labour MP Paul Farrelly that the newspaper was ultimately unshackled: using his parliamentary privilege, which confers exemption from prosecution, he raised the matter of the injunction in the House of Commons. #Trafigura immediately began trending on Twitter, and following a huge public outcry, the company was forced to back down.
Super-injunctions have become much harder to procure since their heyday in the late 2000s, when they were “thrown around like confetti.” In the first nine months of 2009 the Guardian was served with “at least 12 notices of injunctions that could not be reported,” and the tabloids were receiving many times that number. By definition, we can only know the particulars of these injunctions if the claimants themselves chose to reveal them — which has occasionally happened — or if they were overturned at a subsequent court hearing. Such was the fate of footballer John Terry, then the captain of Chelsea FC and the England team. In January 2010, the High Court granted a temporary super-injunction to block the reporting of Terry’s extra-marital affair with Vanessa Perroncel, a French lingerie model and the former girlfriend of a close friend and teammate. But just a week later, the judge lifted the injunction and suggested that Terry — whose £7 million-a-year salary was supplemented by millions more in brand endorsements — did not so much dread the violation of his privacy as the harming of his sponsorship deals.
Alas, the potential injury to one’s wallet from a front page exposé does not constitute legal grounds for said story to be quashed. Once was the time that press injunctions were only issued when the reporting of a particular court case might endanger someone’s life, or to avoid prejudicing a trial, or to safeguard the identities of children. Their specific use by VIPs with naughty secrets has its provenance in 1998, when Prime Minister Tony Blair introduced into English law the Human Rights Act, which enshrines the right to a private life. The architects of the original European Convention on Human Rights, drawn up in 1950, intended to prohibit the type of oppressive state intrusion into personal affairs seen under Fascism and Communism. The notion of helping overpaid priapic athletes conceal their infidelities with breasty young women had, no doubt, not even flashed through their minds.
That arguable blot on our history reached its nadir in May of 2011, when Manchester United’s Ryan Giggs obtained an anonymized injunction against reality star Imogen Thomas, with whom he’d had a seven-month affair. His anonymity was quickly blown by foreign publications and on social media. Giggs doubled down and sued Twitter in a vain effort to obtain the names of all the tweeters who’d flouted the injunction. (“You would have to be a moron in a hurry,” retorted media lawyer Mark Stephens, “to suggest to this footballer that he throw good money and publicly excoriate himself yet further.”) In response, Liberal Democrat MP John Hemmings opined during a Commons question on privacy orders that “with about 75,000 people having named Ryan Giggs it is obviously impracticable to imprison them all.” Since reporting the proceedings of Parliament has been an inalienable right for centuries, the injunction was instantly rendered null and void.
In the same month, a Committee on Super-Injunctions — a group of lawyers and judges who participated in a year-long inquiry — advised that in the recent past, super-injunctions “were being applied for and granted far too readily” and that judges ought to carefully weigh the right of privacy against the right to freedom of expression. In fact, this was simply a reiteration of the government’s instructions when the Human Rights Act became law; then, the courts were told to give particular emphasis to the importance of free speech, and public interest, when considering injunctions.
In the late summer of 2010 — which saw, in the space of a few weeks, three of the England team divulge their sexual escapades to the courts so that we might remain innocent of them — the pendulum had indeed swung pretty far the other way. It is, of course, down to a judge’s discretion whether a claimant’s entitlement to secrecy trumps both the defendant’s right to free speech and the story’s public interest (the two principles being intertwined, since a free press is deemed to be in the public interest). And since there’s little consensus on what “public interest” actually means, it’s hardly surprising that contention has arisen between newspapers — united in their condemnation of celebrity injunctions, and inclined to stretch the public interest argument to cover many and varied stories — and the judiciary, which has typically applied much narrower parameters to the definition.
The loftiest interpretation of public interest is our common concern with the workings of government, but we’re more often drawn to stories wherein someone’s carefully curated public image conflicts with their private behavior — especially if their image helps them make money. Nothing kills sympathy and stimulates curiosity like the whiff of hypocrisy, elected official or not. In 2010 the footballer and England Captain, Rio Ferdinand, sued the Sunday Mirror for running an interview with a former lover. Claiming a gross invasion of privacy, he sought a worldwide injunction on further publication, as well as damages. During a three-day trial the following year, Mirror Group Newspapers maintained that their story’s public interest hinged on Ferdinand’s appointment to Captain as a reformed character who’d renounced his debauched ways, and on the incongruence of his philandering with a “family man” brand. (Similarly, the application for an injunction by the claimant-who-cannot-yet-be-named was initially refused due to his public portrayal of marital commitment, then granted on appeal.) The judge was persuaded: Ferdinand lost his case and had to pay costs of around £500,000.
It’s estimated that the injunction now in the spotlight will cost double that sum, all for precisely naught now that, pending the outcome of a Supreme Court challenge, the injunction has been lifted. (It is “inappropriate,” ruled the judges, that anyone should be restrained from “saying that which is common knowledge.”) Should this outcome sound the death knell for the celebrity injunction — as many are gleefully proclaiming — it will be fascinating to witness the impact on journalistic conduct. In the post-Leveson, post-phone hacking era, what they used to call Fleet Street is meant to be a more ethical and civilized place, where self-regulation is curbing the worst gutter-press excesses. If the demise of the celebrity injunction augurs a renaissance for ye olde kiss and tell, it would be a small price to pay for a society in which the wealthy and powerful cannot act with impunity, comfortable in the expectation of legally sanctioned censorship.
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