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Opinion: “Wayne Rooney’s infidelity exposes law’s misogyny” – Gill Phillips

By granting these privacy orders, courts are allowing men to treat women like chattels

There has been a lot of public discussion in the past few weeks about celebrities getting injunctions to protect their private lives. The commentaries suggest that these injunctions are being obtained predominantly by high-profile celebrities including a number of Premiership footballers to prevent publication of their (alleged) peccadilloes.

There is, however, another aspect to this debate. The more of these stories I read about, the more they seem to me to represent a rather sordid misogynistic world where Victorian value judgments prevail and where women seem to be treated as bits of property. I am concerned that this is a world that the courts seem happy to protect.

In Max Mosley’s case against the News of the World, Mr Justice Eady said: “It is not for the state or for the media to ex-pose sexual conduct that does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights … merely on grounds of taste or moral disapproval.”

There is a much deeper moral danger about these orders and that is that the courts in granting them are allowing men to treat women like chattels – they are not just condoning these celebrities’ conduct but also creating the impression that it is acceptable to behave like this and not to tell your wife or partner what you have been up to. This is where the real vice lies. It is not about stopping the tabloids exposing sexual misconduct – I have no desire to read about Wayne Rooney‘s latest infidelity – it’s about perpetuating and protecting a view of society where men can behave like Neanderthals and then be told by a court of law that it is absolutely fine to treat women like lumps of meat. The real harm of these orders is not that they gag the press – it is that they stop the wives, partners and families from finding out about the bit on the side.

In 2009, some of these orders appear to have been obtained by men who were seeking to cover up a variety of affairs. Guardian News & Media was notified on 10 occasions of injunctions granted to individuals whose identity was protected by anonymity, and eight orders so far this year. It is also of concern to me that the vast majority of the orders are given by male judges in cases where these male celebrities are represented by male barristers. I worry we are missing a really serious issue – little or no regard appears to be given to the rights of women in these cases, whether the “other woman” or the wounded wife or partner.

The effect of the court’s willingness to grant these orders is that they seem to condone the treatment of women by these celebrities – a woman can gratuitously be called a tart and a slag without any opportunity to defend herself publicly, and all credit in that regard to Vanessa Perroncel for speaking out.

Much has been said about how distressing it must have been for Coleen Rooney to have read about all this in the papers – but that misses the point. If Wayne wanted to avoid causing Coleen distress then it’s quite simple. Don’t play away from home and if you do, then fess up: that’s what those who aren’t rich and famous enough to go to court have to do.

Article 8 of the Human Rights Act provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. Three points come out of this. First, Article 8 talks about “respect” – how can celebrities are using the court to protect their indiscretions avail themselves of this right to protect themselves?

Second, this wording doesn’t separate out the private and the family elements – I struggle to understand how the courts can so readily be persuaded to use this to protect someone who is showing no respect for their families.

Thirdly, it seems to me that all too often the courts are confusing something described as “private information” for what is really protecting a public image or a commercial reputation. This is the point that Mr Justice Tugendhat appears to have been a lone voice in understanding in the John Terry case.

These cases are not really about protecting privacy, they are about protecting a male-dominated view of the world where it is legitimate to have sex with whoever they want and not have to account for it. It is the same justification that says men paying for sex is fine.

The debate has been hijacked to make us think it is all about the tabloids breaching privacy and the public interest (or lack of it) but it is not. It goes to the heart of a much deeper, male-orientated view of society and relationships. On one level there is a simple answer: don’t grant these orders. They are not about privacy, they are about power and the abuse of power; they are about men’s relationships with women and the abuse of those relationships; and they are about protecting reputation and commercial images. This is where the public interest really lies.

A final point: if the courts are going to continue to grant these orders then, where they involve endorsing lies and deceit in a relationship, at least make it a requirement that the individual seeking the court’s protection has to tell his wife or partner the truth before he gets anywhere near court.

Gill Phillips is the director of editorial legal services for the Guardian. This article originally appeared in the Guardian Media Law section and is reproduced with permission and thanks.


  1. Steven Price

    A few questions from the distant shores of New Zealand.
    I would have thought that, by the time you’re into applying for an injunction, the wife will have found out. It’s pretty hard to keep an affair and an injunction secret. Is there any evidence that any of the wives didn’t know by the time the injunction was applied for?
    Isn’t it pretty clear that anyone telling just the wife would have a public interest defence? The injunctions prevent widespread publication, but I’d be surprised if there was anything to suggest that someone who clued only the wife in wouldn’t have a defence.
    Finally, is there any evidence that any of the wives would have opposed the injunctions, even if they’d known about the affair? Such injunctions may protect the philandering males, but they also protect the families from becoming media roadkill. I’m not sure how much they’d appreciate this ardent defence of their interests.
    Steven Price

  2. Andrew Scott

    The reason why many people seeking injunctions do so is precisely to avoid their better halves finding out the truth regarding their behaviour. This was manifestly the case in CC v AB, in Terry, and in many other cases.

    The manner in which the courts dealt with the vexed question regarding the protection of the Article 8 rights and other interests of the third parties (wives, and presumably children) in those cases was very instructive. On one hand, they have to grapple with the fact that often any harms caused to some third party will likely be attributable most directly to the behaviour of the claimant him- or herself. On the other hand, while accepting the generality of the previous point, the court must appreciate that the public exposure of one’s humiliation by means of lurid publication on some mass media platform is likely to be a somewhat harsh experience for any unassuming individual. The court is obliged not to act in such a manner as to curtail individual rights through its action. As such it must be cautious not to add insult to injury.

    In CC v AB, Mr Justice Eady noted the potential relevance of the Article 8 rights of the claimant’s wife and children. In addition, the claimant was able to adduce medical evidence that his wife was suffering from “stress and anxiety which requires medical attention… and which [was] quite likely to be made worse by press exposure”, and “non-medical evidence of self-harm and of threats to commit suicide” (at [10]). Given the claimant’s wife’s “fragile mental state”, the judge considered that he could “hardly ignore” the potential consequences if an order was not made (at [43]; see also at [47]).

    More often, the third party is unable through lack of knowledge to present evidence to the court, because the claimant doesn’t want them to know. The view of the Court of Appeal in A v B plc was that “the judge should not… assume that it was in the interests of [the wife] to be kept in ignorance of [the claimant’s] relationships… this is an issue on which the court is not in a position to reach a judgment” (at [43v] per Lord Woolf). In Terry, the court was also specifically asked to have regard to the Article 8 rights of the claimant’s wife and children. Mr Justice Tugendhat insisted, however, that “respect for the dignity and autonomy of the individuals concerned requires that, if practicable, they should speak for themselves” (at [66]). Distinguishing CC v AB, he noted that:
    there [was] no suggestion that the first interested person [was] unwell or otherwise abnormally susceptible, or not in a position to address this matter… if it is not practicable or just that the other person… should not (sic) give evidence personally, the court should know why.

    The judge indicated that it was not enough for the claimant merely to suggest that the other person did not know about the behaviour regarding which information was to be disclosed. In normal circumstances, this is surely correct. The court must be cautious to protect third parties against injury caused by widespread publication, not to assist the claimant in maintaining that person’s ignorance of the fact and extent of any deceit. It doesn’t give Gill Phillips everything that she thinks is necessary in this respect, but it does stop the claimant suborning the court in the attempt to continue the deception. It would also, clearly, put the ball back in the court of the claimant in terms of having to ‘fess up’ as Gill put it if the publication is to be avoided. If they don’t, and publication happens, then they are doubly to blame and the law isn’t complicit.

  3. Dominic Crossley

    It is difficult to see where the “Victorian value judgement” lies; in the granting of the injunction or in Gill Phillips’ conclusion that there is a “moral danger” in such judgments. How can it be morally preferable or consistent with a respect for family life to splash this information all over a red-top newspaper? The effect of these exposés must be the opposite of Gill Phillips’ worthy intentions; in the prophetic words of Sedley LJ : “Is the revelation in the family’s Sunday paper that he has been sleeping with a lap-dancer going to make them switch to, let us say, Wayne Rooney as their preferred role model? Or is it going to suggest to them that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?”.

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