Friday, June 03, 2011 

So that explains it...

A similar gag has been doing the rounds, but you can trust Viz to make it official:

Also in the latest issue:

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Friday, May 20, 2011 

A new starting point on injunctions.

It would certainly be nice if following today's excellent report by the committee on super-injunctions (PDF), the media finally drop the entirely misleading claim that injunctions which anonymise the claimant(s) are anything approaching the equivalent of the orders sought by Trafigura and John Terry, both of which were subsequently overturned. As they point out, as far as they're aware only two "super-injunctions" have been issued post-Terry, the first of which involving Howard Donald of Take That was set aside on appeal, while the second was only in place for seven days to prevent the alleged blackmailer from being able to get their information out before they could be held in contempt of court for doing so.

As was expected, there's very little in the report to cheer the tabloids hoping for some sort of admission that the current situation is unsustainable and that parliament should legislate to decide where the balance between privacy and freedom of expression should generally lie. Interestingly, the one potential sop to the more concerned sections of the media which has been reported, that super-injunctions were once granted far too readily or too often doesn't itself seem to appear in the report, suggesting this was intimated by Lord Neuberger or Lord Judge at the press conference.

The recommendations the report does make are sensible and should be easy to put in place. It's long been absurd that no proper records have been kept of just how many such injunctions have been issued, making it incredibly difficult to ascertain whether there really has been a massive growth in the number of gagging orders applied for. Collecting the data and issuing an annual report will help to dispel claims that "justice" is increasingly being carried out in secret. Similarly, standardising the procedure to be followed when a "interim non-disclosure order" is sought in the future should help streamline the process, as well as ensure that third parties, almost always media organisations, know about the hearing and have a chance to challenge it from the outset.

The one potential difficulty with the latter is that, as we've seen, certain sections of the media cannot necessarily be trusted to keep the details of the cases secret after they've been gagged, let alone before the injunction has even been issued. This is admittedly not helped when judges are making such difficult borderline decisions, like that involving Fred Goodwin, where the line between the public's right to know he was having an affair at the time of the banking crisis with the possible knock-on effect it may have had on his work and his right to privacy is so narrow and fraught. Justice must be open and seen to be done, but it doesn't have to involve kowtowing to a press that continues to want to impose its own unbelievably hypocritical version of morality on a nation for the sake of their sales. We have long deserved a better debate on all of this, and today's report will hopefully provide a new starting point.

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Monday, May 16, 2011 

Anything else going on apart from...?

"It's been a week where you sit there thinking, is there anything else going on in this country apart from a bunch of z-list celebrities having sex with each other?"

So asked Ian Hislop, in what was to be the last episode of Have I Got News for You to feature Angus Deayton as host. It was also the same week in which Ulrika Jonsson said that she had been sexually assaulted by a well-known television presenter, who was inadvertently named by Matthew Wright shortly afterwards. The past week has seen a very similar situation, albeit it slightly hampered by how we're not supposed to know who some of those z-list celebrities are.

If nothing else, you have to hand it to the tabloid press: it often accuses the supposedly more serious-minded broadcasters and papers of hypocrisy on the grounds that they more or less duplicate their coverage, albeit under the guise of poking fun or discussing the potential implications for press freedom. There's been no such back-biting this time, for the reason that they've been amazingly successful in turning what have been only the latest incremental development in privacy principles into an issue of freedom of speech so vital that the prime minister has intervened on more than one occasion to declare his unease. Under the banner of "super-injunctions", almost none of which the recently issued orders have actually been, they've campaigned vigorously for their right to print more or less what they like about prominent individuals and what they might have been up to, invoking morality, censorship, democracy and almost anything else they think might win more supporters to their cause. Helped along by social networks and the difficulty of removing information once it's out in the wild on the internet, as well as a growing feeling, especially among those who live their lives online and hide very little about themselves from anyone who cares enough to look, almost no actual attention has been paid to the details of the cases themselves, the way the tabloids have personally fought the injunctions, or indeed to just how open they've been about why they really want to return the the height of "bonk" journalism as practised back in the late 80s.

Indeed, just how limited the general debate has been was showcased on Newsnight on Friday, where Hugh Grant and Charlotte Harris faced off against Helen Wood and Fraser Nelson. Grant, fresh from bugging a News of the World journalist, came across exactly you suspect as the tabloids would like: outraged that anyone should know absolutely anything about him without his express permission. Much as I find the argument that if you don't want to end up on the front page of a newspaper you shouldn't sleep with prostitutes to be self-serving in the extreme, Grant did his best to prove it, arrogant throughout while attempting at times to play the victim, demanding Nelson to condemn certain practices which he had never condoned. Charlotte Harris, who must be much more convincing in court than she has been in any of her innumerable television appearances, gave her questionable and limited legal analysis, while Fraser Nelson, who despite always looking incredibly pleased with himself seemed to be ignorant of many of the details of the recent cases. Then there was Wood, called on just twice during the entire programme, who looked distinctly uncomfortable throughout.

She wasn't helped by a quite incredible second report from Kate Williams, which happily alleged that injunctions were returning us to the Victorian era where rich men could do as they please and the women were left voiceless, as it galloped through over a century of sexual history in a couple of minutes.
Solipsistic doesn't quite adequately describe it, and poor old Helen was so confused that she clearly hadn't quite grasped what the sexual revolution was when asked whether it had worked for her. Considering she was on Newsnight talking about working as a high class escort, and indeed has been paid a considerable sum having sold her story vis-a-vis Wayne Rooney, even if she can't identify another "high profile" male she performed sex acts on, it's hardly resulted in her penury and exclusion from society, referred to as a tart and hooker in the same press she made a deal with or not.

Just how potentially misled we've been by the self-serving reports in the tabloids, gobbled up and regurgitated whole by the rest of the media is demonstrated by the interim judgement in the case involving Imogen Thomas and the anonymous, although widely named footballer. Contrary to Thomas's (literal) sob story of how her name's been run through the mud despite not ever wanting to sell her story, Mr Justice Eady relates the footballer's side of events. According to him, the whole thing appears to have been a set-up between her and the Sun, where she demanded to meet the player on two separate occasions at different hotels, both times asking for money with the obvious implicit threat being that otherwise she'd sell her story. Each time it seems the paper was waiting to take pictures of their arrivals: if the player paid up, then she got her money and the paper still had the story with no evidence that Thomas herself had been involved; if he didn't, then she would presumably have been reimbursed by the Sun. The footballer additionally says that rather than the six-month long relationship Thomas claims, they had only met three times between September and December last year. While that hasn't been contradicted by Thomas's representatives, she did later deny that she'd either asked for money or had "caused" the Sun's initial report last month.

While Eady is only presenting the case as it currently stands before any trial, the footballer's side of the story is all too plausible. It also fits with the pattern that rather than most of the injunctions being issued after individuals getting wind of a story or being contacted prior to publication, there is often also an element of blackmail involved, as there was in the controversial ruling where Eady issued a contra mundum injunction, as well as in that involving Zac Goldsmith. Eady, clearly at pains, goes on to point out despite much of the comment that the current process has been built around two major rulings by the House of the Lords, with four even more recent cases where the Lords refused permission to appeal (paragraph 21). Moreover, as he writes, in cases where blackmail is either alleged or where it looks to have conceivably been involved, anonymity has been previously given as a "matter of public policy". It's only now, when all the details have not even begun to be made public that this has been questioned.

Damningly, as Eady goes on, the Sun's representatives didn't even attempt to argue that any story would be in the public interest. Instead they simply claimed that Thomas's rights to freedom of expression under Article 10 of the European Convention on Human Rights were being denied by the footballer's "reasonable expectation of privacy". Worth quoting in full are the two final paragraphs of his ruling:

On the evidence before me, as at 14 and 20 April, I formed the view that the Claimant would be "likely" to obtain a permanent injunction at trial, if the matter goes that far. As I have said, it remains uncontradicted. The information is such that he is still entitled to a "reasonable expectation of privacy" and no countervailing argument has been advanced to suggest that the Article 10 rights of the Defendants, or indeed of anyone else, should prevail. There is certainly no suggestion of any legitimate public interest in publishing such material.

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, at [28]-[32] and [50]-[51]. In so far as there are any conflicts of evidence or of recollection between her and the Claimant, it will be for the court to resolve them at the appropriate time. I will discuss with counsel whether it would be appropriate to order a speedy trial for that purpose.

This more than rebuts Thomas's claim afterward that she was being denied the opportunity to defend herself: if she wishes at length to contradict the footballer's version of events, then she can and hopefully will, albeit without naming him.

If this latest ruling were the exception to the rule, then the campaign waged over the past few weeks would be worthy of support. As previously argued, some injunctions have been questionable in their sweeping nature, but far too often as the Guardian pointed out they've been confused with our libel laws, which are currently under review. Despite having emitted such sound and fury, in many of the cases the tabloids don't even pretend that the public interest will be genuinely served by their serving up of the celebrity shags of the week; instead they make the highly dubious argument that it's such sensationalism and gossip that has enabled them to provide other journalism and campaigns which have benefited the wider public. Deprived of them, they'd wither on the vine and die, especially now as the internet has so eaten into their market.

Even in this time of declining circulations, the Mail sells over 2 million copies a day while the Sun clocks in at just under 3 million. Neither have suffered the massive falls of their competitors, and both will continue to be printed for a long time to come. They might fear the effect of kiss 'n' tells being completely choked off, yet even under the most extreme reading of Eady's latest ruling it seems laughable that every z-list celeb will be lining up for an injunction to cover up their dalliances. As morally (and hypocritically) outraged as the tabloid editors and long-time hacks undoubtedly are by the turn of events, it's cover as much over the phone-hacking scandal as it is an attempt to provoke David Cameron into doing something about it. What's more, the ultimate victory has been in making everyone delve into this world of who's shagging who, to make those of us who'd rather just let them get on with it have to dive into the depths of the "privacy" debate. Where Orwell once wrote of the decline of the English murder, so too they want to forestall the decline of the English affair, and they'll try everything in their power to do so.

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Tuesday, May 10, 2011 

Injunction hysteria and the failure of Max Mosley.

It's difficult to shake the feeling that this week's latest outburst of injunction outrage on the behalf of the tabloids and certain sections of what was once the broadsheet press wasn't so much to do with the mysterious InjunctionSuper tweeter (twatterer?), although they provided the excuse to clear the front pages, and much more to do with the fear that Max Mosley would triumph with his case at the European Court of Human Rights. Having so firmly established that philanderers and blackguards are effectively subverting democracy itself by stopping the popular press from reporting on their exploits, had Mosley won we would now be drowning in a veritable sea of anti-European, anti-liberal, anti-'uman rites venom, the death knell of the British media as we currently know it all having been all but sounded by an unelected elite sitting in judgement from afar.

Happily, and just to confound the caricature of the judges in Strasbourg as often depicted as interfering, foreign lunatics and incompetents, they quite rightly decided that Mosley's Article 8 rights had not been breached by this country lacking a mechanism through which newspapers must inform prior to publication those individuals they plan to run an expose or similar about. This wasn't because in Mosley's personal case there hadn't been a quite despicable breach of privacy, it was more that the circumstances were something approaching unique. As Justice Eady made clear in his ruling back in 2008, the supposed "Nazi element" of Mosley's spanking orgy was a construct aimed at giving the story a public interest defence, even while he accepted that the paper's editor and Neville Thurlbeck thought there was such a flavour, not least because they saw what they wanted to see. Had the paper simply gone with the spanking story and informed Mosley prior to going to press, an injunction would almost certainly have been granted had he taken legal action. Relying instead as the paper did on the story being totally in the public interest as it exposed the son of the fascist leader Oswald Mosley involved in sadomasochism with Nazi overtones, the ECHR's reasoning is that even if there had been a stricture where the press have to inform those they intend to write about he would have been unlikely to fall under its terms.

The Guardian, which while not exactly rallying to the side of the tabloids has been quietly concerned over the recent supposed spike in injunctions, made a third-party submission to the court which made the obvious argument against just such a requirement as Mosley was asking for: that rather than covering only cases where personal privacy was involved, it would apply across the board. While it's mainly standard journalistic practice to inform individuals or companies that they're about to have a report on them published, not least to give them an opportunity to comment, the Trafigura scandal makes plain just how some will seek to have the most destructive, illegal behaviour swept under the carpet. The ECHR in its conclusion made clear that what Mosley was asking for has the potential to have a "chilling effect" on the right to freedom of expression. Along with doubts over just how effective it would be and how such a "public interest" mechanism would work, there was really no other option than for the court to make clear Article 8 does not demand a legally binding pre-notification requirement.

There is no doubting however just how successful the tabloids have been in turning their woes into a matter of seeming immediate national importance. Away from the very few number of cases where the granting of an injunction has been questionable, or where the terms have been arguably far too broad, most have just been typical tabloid tales where the person involved is as much being humiliated and embarrassed because of their fame rather than down to the heinousness of their actions.

Take for example the supposed "world famous" actor, who if he is who we're led to believe I had never heard of before (he's not Ewan McGregor, despite initial rumours) and his dalliance with Helen Wood, the sex worker who did a number on Wayne Rooney. One of his pleasures apparently, again for the reason that we don't unequivocally know, involved a dildo being "used" on him. Such a detail, while not exactly out of the ordinary, is the kind of fact that people remember and snigger about. It is the sort of thing that leads to children and relations being bullied and similarly humiliated. This person is not any kind of direct role model to children, as the tabloids claim footballers and other prominent stars are, nor does he make money out of selling his image as such. He's simply a man who because of his acting work is considered fair game and is grist to the mill. As prostitution itself is not illegal (soliciting is) he's committed no crime other than one of stupidity. There is no public interest in him being exposed in such a way, yet we apparently "know" about it regardless of the injunction.

Let's not pretend either that Twitter, blogging, social networking or the internet on their own make such injunctions and potentially a privacy law untenable and unenforceable, as has been claimed. The rumours about the applicants all have to begin somewhere, and it's more than fair to say that the newspapers themselves have been getting incredibly close to breaching them on their own, dropping almost excessive hints in some cases. Private Eye, which always faces both ways when it comes to the tabloids and their obsession with the sex lives of the rich and the famous ran a "lookalike" in its last issue in which Wayne Rooney was compared with the man alluded to above. Elsewhere it all but named the footballer involved with Imogen Thomas, while reiterating how the papers had covered the injunction involving the TV man who had an affair with a co-star, described more than once as "shameless".

What is apparent is that even if they end up not being able to publish a story which might shift a few extra papers, the tabloids seem to be determined that it gets out there somehow. As some predict, this latest outbreak of belly-aching about how unfair it is not to be able to ruin lives will probably peter out. No one seriously expects the government, even this one, to legislate, not least because it would have to almost certainly draw up some privacy protections which the tabloids would complain bitterly about even while removing the wider threat to their profit model. Judges will continue to cop the flak for making nuanced decisions which politicians are too cowardly to get involved with. Who though could possibly blame them when we have such a wonderful, law-abiding media?

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Thursday, April 21, 2011 

Playing the victim in the privacy wars.

Whenever the tabloids start to play the victim, it ought to be apparent that there's something far more vital at stake than the freedom of the press: that other enduring freedom, to make money out of the misery of other people. If you've been cynical enough to think there might be something else afoot that's encouraged the so-called popular press to spend much of this week complaining bitterly about how they're not being allowed to continue to focus on shag 'n' tell journalism to the detriment of everything else, then you'd be right. Even if the phone-hacking scandal hasn't (yet) touched any other newspaper than the ever egregious News of the Screws, they know full well that the longer it rumbles on the more likely the same celebrities and politicos now demanding recompense from Murdoch's minions will turn their attention onto them. Why else after all would they have done so much to either ignore or play down the NotW's sad troubles with the Metropolitan police if they didn't themselves know there would be be similar discoveries if their own email records were exposed to the same intimate attention? It certainly isn't the old Fleet Street spirit of solidarity, of dog not eating dog, which has always been something of a myth.

Anything then to deflect from how so much of tabloid journalism is currently under scrutiny. Politically wise or not, considering the potential for revenge to be taken in the most damaging of ways, Ed Miliband's call for an independent review of the Press Complaints Commission and newspaper practices once the police investigation into the Screws has finished was both brave and welcome. It must have also been alarming to tabloid editors and their owners, not so much because they fear such an inquiry taking place, something doubtful to happen when the levels of mutual sycophancy between themselves and David Cameron are still high, more because it's a sign of just how precarious their craft is becoming that any front line politician feels bold enough to call for something they would have usually not touched with the proverbial ten-foot barge pole.

The resurrection of the issue of super-injunctions for mostly specious reasons should be reasonably apparent due to how the cases the tabloids are complaining about are err, not super-injunctions, otherwise they wouldn't be able to complain about them at all, as they're meant to ban the press from even mentioning they've been gagged. Instead the courts have recently favoured the slightly subtler form of injunction which allows the media to make clear that they've been stopped from printing a story, and even to go into some of the relevant details which could potentially identify those involved. Hence we know a married footballer has stopped the press from splashing on his affair with the fragrant Imogen Thomas, a former Big Brother contestant who's made her living since appearing on the show by exposing her plastic breasts for money, while a "world famous" actor who paid for some sort of sexual activity with the equally lovely Helen Wood, an escort universally known in the gutter press as ROONEY TART/HOOKER for her past dalliance with the Manchester United striker has also been saved from the ignominy of having his poor taste in sex workers revealed.

Justifications for informing the world that famous people tend to be just as human as the rest of us range from the moralistic, such as Paul Dacre's notable attack on Mr Justice Eady for stopping newspapers reporting on the "unimaginable depravity" of the likes of Max Mosley, to how it enables superstars to continue to present themselves as role models to the young while profiting from it through marketing deals, all the way along to the usual press freedom arguments. Others still are now pointing to how unfair it is on the women involved that they can't either protect themselves or sell their stories, as if the likes of Imogen Thomas or Wood are somehow damaged further having usually informed the media in the first place. Excepting Wood, it also ignores their own responsibility for involvement in the affair, even if their identities don't always stay hidden. In a recent case the News of the World had intended to claim that a television presenter had been sacked after the fellow host she had conducted an affair with had requested the break up of their partnership, only for her to support the seeking of the injunction.

It would be much easier to respect the principle of "publish and be damned" if the stories the media does manage to get into the papers were reported accurately. Not content with the already sensational likes of Mosley conducting spanking sessions with dominatrices, the Screws had to sex it up further (arguably to give it something resembling a public interest defence) to Mosley having a Nazi orgy. The John Terry saga of last year took on a rather different air when the quietly determined Vanessa Perroncel managed to extract apologies from both Sunday newspapers involved, more than suggesting that the claims of an affair between the two were inaccurate. Terry has since been restored to the England captaincy, the role he lost after the tabloids called for him to lose it following his "infidelity".

This isn't to suggest there aren't potential problems ahead should the law be more contentiously interpreted by judges. A judgement published yesterday by Justice Eady seems to go a step further than anything so far: in a case he describes as an example of "straightforward and blatant blackmail", he imposed a contra mundum injunction, forbidding not just the national but worldwide media from identifying those involved. These have only formerly been issued in cases where those seeking them were not just at risk of having their right to privacy under the European Convention of Human Rights breached, but their article 2 and 3 rights also; John Venables and Robert Thompson, the killers of James Bulger had their new identities protected in such a way, as did Mary Bell. Regardless of the solid medical evidence suggesting the health, including the mental health of those involved has been affected, this could well be a step too far: it's one thing to protect those who have committed terrible crimes as children from being hounded for the rest of their lives or even killed by banning the publication of their whereabouts and names; it's quite another to do so over a case which involves "intimate photographs and other information". Moreover, it's bound to lay down the gauntlet to media outlets overseas who've graciously respected the past rulings who will be far less likely to do so when the stakes are nowhere near as high; and after all, what exactly can they be threatened with which might make them think twice before doing so?

Despite David Cameron today voicing his "unease" over the recent injunctions, it's still manifest that judges are not making the law, merely interpreting it as best they can and following rulings
which have set precedents, usually delivered either by the highest court here or by the ECHR. It's also clear that politicians still seem unlikely to be willing to get involved in something which will mean them rather than judges deciding on how to balance the competing rights of privacy and freedom of the press, whether or not they have the tabloids screaming at them to do something or not: in this instance there seems to be too much to lose either way. Having spent so long complaining about vested interests and their role in British life, it's would be nice if the tabloids recognised theirs in preferring exposure over privacy. It's only when it comes to their own newsrooms that they opt for the latter.

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