“Privacy Madness: rational debate disappears in a tide of self interest and obsession with sex” – Mark Thomson

The British Press is prone to periodic bouts of uncontrollable rage.  It turns, from time to time, on a particular target and vents its fury.   When these episodes take place, all pretence of “balance” or “argument” is left behind.   Last week was the week of “privacy madness”.

The familiar rant against “amoral judges” and “shameless celebrities” has been spiced up with a touch of populist feminism:  those obtaining these injunctions and “gagging” the British press are, apparently, all “rich males”.   Although this particular social sub-group is not normally subject to unfavourable comment in the “Mail”, “Times” and “Telegraph” some of its members have committed the unforgivable sin of trying to cut the tabloids off from their essential sources of reader titillation.

The recent coverage is summarised by the “Press Gazette” under the headline “National press go on attack over privacy injunctions“. In a typically moderate “Mail” piece, Stephen Glover claims that “Amoral judges, shameless celebrities and a Britain that’s coming close to a police state“.   To repeat the old adage “you couldn’t make it up.”

For good measure, the press has taken the opportunity to renew its attacks on Mr Justice Eady – according to the “Telegraph”, “The Judge who stops us knowing the truth“. John Kampfner tells us that “Justice Eady is in danger of making an ass of the law“.  Stephen Glover joins in the fray.  Readers can fill in their own misinformed anti-judicial rants at this point.

I could go on –  but reading too much of this kind of thing leads me to feel, like David Cameron (but for slightly different reasons), “a little uneasy”.  The best that can be said about it is that it occupies space in the papers.  The public is, as usual, left in a state of misinformed confusion.  It is, perhaps, worth recalling that last year’s Reuter’s Institute Report on “Privacy, Probity and Public Interest” (almost entirely ignored by the media) showed that most people still regard sex and sexuality as essentially private.

It is useful after this diet of half truth, exaggeration and hyperbole to recall a few facts.  In the first three months of 2011 there were no “super-injunctions” and just eleven “ordinary” ones – court orders restraining the publication of private information.   Only two were brought against newspapers and, of the others, at least four involved attempted blackmail.  Ten were anonymised.  Since 1 April 2011 there have been six more privacy injunctions – two of which involved the media and led to substantial publicity.

In the first, NEJ v Wood, the claimant was an actor who restrained the disclosure of his name by a prostitute – a woman who achieved tabloid fame as a result of an encounter with footballer Wayne Rooney and who according to the energetic Mr Max Clifford is proposing to “tell all” in an “explosive autobiography” published abroad.  In the second, CTB v News Group the claimant was a “top Premiership footballer” who restrained former Big Brother contestant Imogen Thomas (whose name was published by The Sun before any injunction application was made) from telling the story of their relationship.  In neither case has it been suggested that there is any “public interest” in publication.  The press defendant appears to have agreed to the continuation of the injunction in both cases.

In addition, two reserved judgments in privacy cases were given last week.  In the first, ETK v News Group ([2011] EWCA Civ 439) the Court of Appeal made the rather obvious  observation that the rights of children were of particular importance in privacy cases.   In giving judgment Ward LJ paid specific regard to the importance of a free press – and more controversially – their need to sell newspapers:

“To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers. We have to enable sales if we want to keep our newspapers. Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy. These considerations require the court to tread warily before granting this kind of injunction”. [13]

Nevertheless,  this did not satisfy the Chairman of the Media Lawyers Association the Mirror Group lawyer Marcus Partington who commented on this blog:

“Completely muddled thinking this by Ward LJ and try as I might I have been unable to find in the judgment a reference to how the court “must have particular regard to the importance of the Convention right to freedom of expression””

The second reserved judgment was in OPQ v BJM ([2011] EWHC 1059 (QB))  in which Eady J granted a final “contra mundum injunction” in a privacy case.  This is, indeed, a novel development.  It produced an enraged “Daily Mail” front page headline “TV Star’s Shame Hushed up for Ever”   The decision gives rise to interesting legal issues – discussed on the RPC Privacy Blog and our case comment.  It is, however, difficult to disagree with the result.  As Dominic Crossley put it in his recent post that

If Eady had condoned the blackmail and allowed publication he really would have been “amoral” as the Daily Mail like to allege.

It is difficult to know what lies behind all this media hyperactivity.   There is an absence of stories in the parliamentary recess, pre-bank holiday and pre-Royal Wedding hiatus.  The last “super-injunction frenzy” was just before the August bank holiday last year.   There may also be something in Dominic Crossley’s conspiracy theories – with News Group Newspapers accused of invasion of privacy by phone hacking on an industrial scale, blaming judges for interfering with press freedom is a handy distraction.  The old calls for statutory regulation of the press have resurfaced and may prove more difficult to resist this time round.

In the end the most obvious explanation is probably the right one: self-interest and the obsession with sex as a means to increasing profit.  Without “kiss ‘n tell” a number of popular newspapers would have a lot of empty pages.  The law is against them,  and according to the Reuters Institute, the public is as well. The solution is to manufacture a “gagging scandal” with a lot of personalized attacks on Judges and Europe, in the hope that media-compliant politicians will, yet again, ride to their rescue.

Mark Thomson is a partner at Atkins Thomson and a member of the Inforrm Committee.