Op-Ed: The Big Question – publish and be damned?

Posted May 1, 2011 by Alexander Baron
An article relating to super injunctions based on recent media reports including a discussion on the BBC Television programme "The Big Questions".
Naomi Campbell doing what she does best.
Naomi Campbell doing what she does best.
Celebrity Pictures Archive
The BBC’s Sunday morning discussion programme The Big Questions is no shrinking violet, though obviously it is not possible to discuss any issue in depth in a one hour slot. There are though, some people who would rather some matters were not discussed or even mentioned at all, and this was the first issue raised today.
Over the past few weeks there has been much discussion in the mainstream British media about an apparently new phenomenon, the super injunction. An injunction is of course a court order that may require an individual or a group of people - a company perhaps - to do or not to do, something. Broadly speaking there are two types of injunctions; those that result from criminal proceedings, and civil injunctions. While the criminal law is, in theory, above everyone, there has been much concern that like the Ritz, the civil law is open to anyone who can afford it.
The term “super injunction” appears to have been coined by Guardian Editor Alan Rusbridger in September 2009 in relation to an exposé that had a serious public interest, the dumping of toxic waste in the Ivory Coast, but recent super injunctions have related to matters that are, arguably, anything but, in particular the private lives of the rich and famous.
In August last year, an unnamed soccer player – who was said to be a household name – was granted an injunction against a tabloid newspaper to prevent it from writing about his private life. This followed hot on the heels of the revelation that a well known professional golfer had done the same. Needless to say, the tabloids were not happy, but the further revelation last week that a prominent journalist had also sought and been granted a super injunction, added an element of farce to the debate.
Andrew Marr, who among other things presents a BBC current affairs programme – like The Big Questions on Sunday mornings – admitted he had embarrassed himself and said he was uneasy about the injunction, which the married political journalist had sought to prevent the disclosure that he had had an affair with a colleague.
To Americans in particular the mere suggestion that anyone, least of all a journalist, could seek and worse still obtain a court order to prevent discussion of something so trivial may seem an affront, but there is no First Amendment in Britain, the law of defamation is much stronger, and since 1998 there is also the Human Rights Act which includes a right to privacy.
A journalist who appeared on The Big Questions made the point that people who appear in celebrity magazines are selling an image of themselves, and making a lot of money out of it. So if that image turns out to be false, surely it is in the public interest to reveal it as such? This position was countered by the lawyer Guy Otten, who called for the law to be clarified, saying that “the law of privacy should protect your home, your correspondence, your sex life, your medical life, your family life...” By “your” he meant everyone.
Asked to comment by presenter Nicky Campbell, Mike Harris of the magazine Index On Censorship said that at the moment there are two to three hundred super injunctions in force (in Britain) “nobody knows how many exactly” , adding that the cost was around sixty thousand pounds a day to initiate the legal process, something he described as “rich man’s justice.”
This debate is one of philosophy as much as law because clearly what public figures do is a matter of public interest. Most reasonable people would agree that if the imam of your local mosque is out drinking with the boys, or the archbishop is seen cruising the local red light district on the look out for a good time, their flocks have a right to know as much as the Sunday tabloids have a right to investigate and publish, but most cases are not that clear cut. In February 2001, the model Naomi Campbell was “exposed” by the Daily Mirror newspaper as a recovering drug addict; the story included a photograph of her attending a meeting of Narcotics Anonymous. Two further articles followed shortly, and Campbell brought an action, not for defamation but for breach of privacy.
The following year, she was awarded a total of £3,500 in damages by Mr Justice Morland, who in his judgment made the point that even “self-publicists" were entitled to some space of privacy. The legal correspondent Joshua Rozenberg added that Campbell had won her fight to privacy but lost her reputation. The case did not end there, but was reversed on appeal only for the House of Lords to reverse it again, and the European Court of Human Rights to affirm the Law Lords.
Although most journalists are unhappy with the law of defamation, it is often the only thing that keeps the Fourth Estate in its place. When people are falsely accused of crimes, they are certainly entitled to sue. And if the allegations are not only extremely serious but totally without foundation, the court may award the plaintiff heavy damages. In May 2005, a senior police officer was awarded £65,000 damages against the Mail On Sunday over a claim that he was a rapist and a wife-beater, while in July 2008, the soccer player Andy Cole was awarded substantial but undisclosed damages against the Daily Star over allegations that he beat his wife.
Of course, the courts may be able to gag the press, but cyberspace is impossible to censor totally, another point that was noted in the programme. And it might be asked if court injunctions, super or otherwise, always have the desired effect. In June 2008, a man named Larry Sinclair held a press conference at the National Press Club in Washington. Sinclair began by admitting that he was a convicted fraudster and a practising homosexual, then went on to claim that he had snorted cocaine with and performed oral sex on a certain United States Senator. The Senator concerned simply ignored these lurid allegations, probably reasoning that in time they would be exposed by disinterested parties as a tissue of lies. If instead he had sought a super injunction, it is quite likely that he would not at this moment be sitting in the White House.