Gagging orders keep the rumour mill running
Yes it’s a problem that society is obsessed with celebs’ private lives, but that won’t be fixed by issuing superinjunctions.
‘Who is it then?’ The question that always follows news of a press injunction does seem to contradict the point of so-called gagging orders. No sooner is one issued, especially if it is by an unnamed celebrity, than the speculation starts. It seems that far from stymieing public discussion, press injunctions tend to stimulate it. They don’t halt intrusive rumours; they beget them.
It is not surprising, then, that the reports over the past week that two England international footballers have issued injunctions hardly looks like quelling lurid stories about England international footballers. In fact, given the Daily Mail dedicated its frontpage to ‘England star’s gagging order’, such legal restrictions, bought at great cost by the inordinately wealthy, look set only to intensify the culturally-approved resentment of ‘pampered and privileged’ footballers. And as ex-England captain John Terry discovered earlier this year, when his own super injunction was overturned, delayed Schadenfreude can be relentless.
Of course, those with enough cash to give to lawyers should not be deciding what we can and cannot know about them. And this means that the press should be free to ask challenging questions, to report on stories no matter how unpalatable the truth might be to the rich. There should be no legal restrictions on what journalists can and cannot report. For it is freedom of speech, embodied by a free press, that allows the powerful to be held to account and those who rule to be asked difficult questions.
Yet the obsession with celebrities and especially footballers – or rather with snobbishly resenting them their lifestyles – tends to warp the debate about gagging orders. Consequently, a defence of the freedom of the press tends to look cynical besides the trivial, tawdry nature of that which journalists want the freedom to report.
This is certainly a point that the lawyers acting on behalf of the rich, famous and footballing seem keen to exploit. So while the freedom to speak truth to power is all very well, is the truth of someone’s private pecadilloes really speaking to anything save titillated readers? It also helps that those lawyers acting on behalf of philandering celebrities can call upon Article 8 of the 1998 Human Rights Act, ‘the right to respect for [an individual’s] private and family life’. This right can be overridden if that person’s actions endanger ‘national security, public safety or the economic wellbeing of the country’, or if the violation of privacy prevents ‘disorder or crime’, protects ‘health or morals’ or ‘the rights and freedoms of others’.
It is easy to see how a lawyer could argue that fornicating footballers are neither putting national security at risk nor corrupting anybody else’s morals, and therefore their antics should not be revealed against their will. Which is the type of argument that persuaded Justice Eady in 2008 to make the landmark ruling that the News of the World breached then Formula One chief Max Mosley’s privacy in reporting his penchant for Nazi-themed sex sessions. Not even the fact that the participants spoke in German qualified as a threat to national security.
And there is something to this defence of a person’s privacy. For instance, Moseley’s decision to enjoy a bit of Carry On Up the Third Reich with fellow fans of 1930s kitsch was never something we needed to know about. Likewise, whatever the two unnamed England players have done, no doubt away from home, will almost definitely have no impact upon the lives of the rest of us. Yes, such stories may be entertaining, particularly if they involve the pompous pricked, the smug humiliated, or a Chelsea player caught doing something vile on a nightclub dance floor. But they are not the stuff of a vital, vibrant public sphere.
The problem with the role of press injunctions, however, derives not from the argument in favour of privacy. Rather it derives from the role of those making the argument. That is, judges and lawyers, whether at the European Court of Human Rights or here in the UK, should not be deciding what is and is not in the public interest. They should not be deciding what the press ought to report and what it ought not to report. Instead, the only people who can judge what makes for a vibrant, vital public sphere, the only people who can decide upon the boundaries between private and public, are the public themselves.
That people’s private lives have become the substance of public debate – and consequently press interest – is not a legal predicament; it is a social and political one. Little wonder the press now finds itself in a situation where private conduct has, in the absence of big ideas, expanded to fill political and public life. Hence the Tory MP Philip Davies fastens upon what he sees as the hypocrisy of those issuing injunctions: ‘People who are in the public eye have got to accept that they cannot cherry-pick the kind of publicity they get. They don’t apply for injunctions when there’s some positive story about them.’ He touches upon something here: when one makes a public matter of private behaviour, it is not only the virtuous bits that are deemed newsworthy.
Tim Black is senior writer at spiked.