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Daily Mail is right about three-in-a-bed injunction – the law is an ass
A considerable amount of journalism is, by its very nature, based on the foul stench of human ugliness. If you strip away the humbug of public interest and freedom of expression mantras, so much of it is rooted in the profit made from vile gossip pandering to the base instincts of jealousy, voyeurism, exhibitionism, prejudice, narcissism and schadenfreude.
But in 2016, what does it really matter if a rich celebrity has an “open” relationship with their spouse and happily swings in threesome frolics with lashings of olive oil? Do the sexual tastes of “PJS” really carry any greater social meaning?
The matter is so trivial that had the story – with names intact – been given one Sunday tabloid outing, the 24-hour news carnival would have quickly moved on. Tabloid smirking and broadsheet pontification would have been incinerated in the bonfire of yesterday’s news.
But the folly of using money and power to conceal the truth about the contradiction between global family celebrity branding and private raciness could now deal the English media’s respect for privacy law a fatal blow. Rather than putting up with the embarrassment, the couple embarked on a headlong rush to instruct London’s finest media lawyers to seek a privacy injunction. And it might be argued that the English judiciary has risked demeaning itself again by engaging in the prior-restraint cover-up.
Public interest vs prurience
English media privacy law began to galvanise from 2004 when supermodel Naomi Campbell defeated the Daily Mirror in a legal spat over an article showing her involvement in addiction therapy. But the absurdity of £3,500 being awarded in damages for an action clocking up £1m in legal costs should have been a warning sign.
Daily Mail is right to protest. Daily Mail
When the European Court of Human Rights decided excessive photographing of Princess Caroline of Monaco was more harassment than reportage, one of the judges – Judge Boštjan Zupančič, said something rather revealing:
I believe that the courts have to some extent and under American influence made a fetish of the freedom of the press.
In the words of Zupančič, the court decided it was “time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded”.
Taming feral beasts
This could be the problem – the judiciary as a state body has decided to “civilise” what Tony Blair described as media “feral beasts” intruding into private lives.
The rich and powerful have made all the running – from Ryan Giggs, who was named in the House of Commons after his attempt at shutting down talk of his extra-marital activities to Kate Winslet’s husband, Ned Rocknroll, who did not want some embarrassing Facebook snaps going viral via the Sun.
Andrew Marr, meanwhile, admitted he was embarrassed about taking out an injunction to prevent reporting of an affair with a fellow journalist.
In the latest case, the judges in London tried to be pragmatic with their legal wrangling. Mr Justice Cranston found first for The Sun because PJS’s promoted public image needed correcting. The Court of Appeal, however, found for the privacy of the couple, accepting the argument that their “commitment may not entail monogamy”.
Lord Justice Jackson said PJS expected his sexual encounters would remain private and publication would be “devastating”. He also took up the argument about the couple’s children. More harm than good would be done via the increased attention from school friends and the internet.
But the hopelessness of the legal system’s role in censoring editorial content, even with the motive of sparing emotional harm to children, has been laid bare. Media cyberspace is hyper-dimensional. Injunctions against media publishers cannot control and limit the tsunami of social media posts and the bile of citizen trolling.
English respect for the right to media privacy is a breach of the First Amendment in the US, where those involved have been unmasked. The secret is also out in Scotland. Injunctions made in the London courts have no jurisdiction in that country’s independent legal system.
Need to know
Furthermore, there is something altogether uncomfortable about a few knowing the identity of the people in this case, and the rest of the population not being trusted to know. Good intentions become something that is discriminatory and patronising.
In the 1930s, the media conspired with the establishment to cover up King Edward VIII’s desire to marry divorcee Wallis Simpson.
Now the media cannot be trusted, is it not the case that the “celebrocratic” establishment gets the legal system to do its dirty work for it? And is it not outrageous that a large part of the British population are treated as peasants?
Desperate controls, including internet browsers blocking inquisitive searches, have been infantilising the public – whose interest may be prurient, nasty, brutal and disrespectful, but exists nonetheless.
Yes, there is the stench of humbug when the news media whine about censorship and the law being an ass. But it could be argued that the hypocrisy here is to be found everywhere; that hypocrisy is both the imperative and end game that tells us freedom of expression can be a necessary evil.
Tim Crook is Chair of the Professional Practices Board of the Chartered Institute of Journalists
Tim Crook, Professor in Media and Communication (Goldsmiths), Visiting Professor of Broadcast Journalism (Birmingham City University), Chair of Professional Standards Board, CIoJ. Goldsmiths, University of London