Reporting Privacy: JIH “Privacy Madness”? – Mark Thomson

2 02 2011

"Silhouette not of man concerned"

Monday’s judgment in JIH v News Group (see our post here) has attracted extensive media attention. The tabloid press was in no doubt about its verdict on the decision.  It was, said, the “Sun” “privacy madness” – the sub-heading in the print edition succinctly summarising the case as “Scandal of love-rat star hiding behind the law”.   The article is illustrated by the “Silhouette” to the right – “not of the man concerned”.  The piece tells us that

The ruling was seen as a major blow to freedom of speech, with the public prevented from receiving information that is true. Experts warned it sets a dangerous precedent – allowing the rich and powerful to “buy” injunctions that ordinary people could never afford.

These “experts” are subsequently named – Mark Stephens, Brian Eagles and, curiously, Max Clifford – who “also blasted the ruling – even though it will BENEFIT his clients“.  Actually, no.  Anonymity substantially reduces the value of the “kiss and tell” stories peddled by Mr Clifford.  The “Sun” article has, down the right hand side, a helpful “Rogues Gallery of Protected Cheats” – with only Ashley Cole being actually pictured.

The “Sun” piece mentions the fact that it was planning to publish the article which was the subject of the injunction.  For inexplicable reasons, it fails to tell readers that it was the “Sun” which consented to the injunction continuing and to the “anonymity” provision which was overturned by Mr Justice Tugendhat but reinstated by the Court of Appeal.   Strictly speaking the proper headline might have been “Judges back Sun on sports star anonymity”.

The first “Daily Mail” article was entitled “Cheating sports star ‘can keep secret identity’ rule judges“.  It quotes an unnamed “leading lawyer” as saying that the ruling meant “the courts now serve the interests of ‘a club of celebrities’“.   Two named lawyers are prayed in aid.  Duncan Lamont of Charles Russell is quoted as making the intriguing comment: ‘Logically it makes no sense at all.’  Niri Shan of law firm Taylor Wessing is quoted as criticising the ruling, saying:

This allows the rich and powerful to ensure their affairs pass without scrutiny. This isn’t about privacy at all, but about protecting commercial contracts.’

This is strange as there is no suggestion whatever in any of the JIH judgments that the claimant had any relevant commercial contracts or that their “protection” had anything to do with the case.

Today’s “Daily Mail” contains a jeremiad from journalist Michael Seamark with the title “League of shame: Fury over sports stars who hide sordid affairs behind privacy laws“.  Readers are informed that the “privacy rules” which allow mega-rich sports stars to keep their infidelities secret has provoked “growing anger”.   The article “lists the gagging orders” that are covering up other scandals.  The article does not identify the person or persons whose anger is “growing” although it can safely be assumed that they include Mail editor Paul Dacre whose strong views on privacy are well known (see his Evidence to the Select Committee in April 2009).

The Daily Star – in a piece which, curiously, gives the age of everyone involved (except, understandably, JIH) – quotes (unnamed) “legal experts” who “said it gave stars a “green light” to behave as badly as they liked”.  Their reasoning is, perhaps unsurprisingly, not disclosed.

The  Telegraph tells us that “Sportsmans wins new gagging order over affair” and has an editorial entitled “Secret Justice is Bad” claiming that the case “reveals a worrying trend towards anonymised justice“.  On the Telegraph website, there is the following comment, which expresses a sentiment common to many newspaper readers:

I am a member of the public and would like it to go on record that I do not feel it would be in my interest for the press to reveal the name of JIH or details of his sex life. I would hope that the press has better things to do. (Although I must admit to wanting to know if the salacious journalists that plague our media have ever had sex, or anything stronger than shandy – or indeed, how they ever find time from their prayer – to write the shallow tripe that they do).

The “Daily Mirror“, the BBC and the Times (behind paywall) had balanced pieces on the judgment.  The “Guardian” – which intervened in the appeal arguing against anonymity – does not appear to have reported the judgment.

Although, after reading the careful and balanced judgment of the Court of Appeal, most media lawyers regard the case is rightly decided on the facts, not a single newspaper published any opinion or comment from anyone in favour of the ruling.  Once again, the press has shown itself incapable of balanced reporting when its own interests are at stake.


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