On Injunctions

May 28th, 2011 | Filed under Politics

Much as I dislike agreeing with David Cameron, I do think that he had the right idea when he was talking about the relevance of certain injunctions. That is to say, when the newspapers are legally prevented from disclosing certain information that is otherwise known to a significant proportion of the population, then the injunction is no longer doing its job. That’s not to say that in the case of Ryan Giggs and Imogen Thomas that the entire injunction should be lifted – I understand that the judge had concerns about harassment, and so on.. However, the anonymous part of the injunction, designed to prevent the naming of Ryan Giggs, long-since breached, could have done with being lifted at a more sensible point.

So having established that once the Internet knew his identity, so too should the rest of the country, John Hemming MP was right, right? Not really.. As I’ve said a few times before, using parliamentary privilege to get around the will of the courts in the case of a celebrity gossip case is not what that privilege exists for. And whilst the perpetuating of the injunction would appear to make a bit of a mockery of the law, I don’t think it does nearly as much damage as MPs basically making things up as they go. Did John Hemming consider the merits of the case, or did he just decide that he has an ideological objection to what the courts have done, and take it upon himself to unilaterally reverse that? It’s an important question when trying to establish what the “best” course of action might be.

Anonymised injunctions play an important role in preventing kiss and tell tabloid exploitation of the private lives of celebrities in order to generate sales. Given that the judge in this case was concerned about possible blackmail, and that the revelation of Giggs’ identity was the very mechanism through which such a blackmail attempt would work, it seems entirely natural that concealing his identity would be the natural response.

But ultimately, in spite of all the good reasons for such an injunction, they’re still unfair. As humans, under the human rights act, we either have an entitlement to privacy, or we do not. It should not be necessary to apply to a judge in order to be granted that which we are promised up-front. It certainly shouldn’t be necessary to spend tens of thousands of pounds on taking out an injunction in order to be granted the protection that should come by default. The problem here is basically the tabloid press.

Is it in the public interest that Ryan Giggs has had an affair? No. Should his privacy therefore be protected? Yes. Is it fair to prevent Imogen Thomas from revealing details of something that happened in her life? No. Should she be given a national platform to reveal those details in exchange for money from tabloids who will then go on to boost their own revenue in the process? No. It’s not a difficult dynamic to understand.

He shouldn’t need to apply for an injunction to stop the publication of that information. Just as he shouldn’t need to spend that sort of money on doing so. Because it grants him a privilege that the majority of society do not have – I certainly couldn’t take out an injunction to prevent details of my private life being published as front-page news. And no amount of arguing “Oh, but James, nobody would ever bother to do that, you’re not interesting enough” changes the fact that the possibility exists. Fairness isn’t about equality of outcome, it’s about equality of opportunity. Faced with equivalent scenarios, Ryan Giggs and I would have very different opportunities in dealing with a possibly breach of our personal privacy.

So ultimately, I’m not a fan of injunctions. They’re selectively available to the wealthy, the well-connected, the well-advised.. That is not a fair society. So I’d like to see no more case-by-case injunctions. How about a blanket injunction for everybody? How about a presumption that our privacy should be protected until such time as a newspaper can show a clear public interest? For example, in the case of Fred Goodwin’s affair with a senior colleague in the run-up to the collapse of his bank – he should have started with privacy, and had it taken away by court order, not the other way around.

If we care about privacy at all, we have to care about everyone’s privacy. And not just at the discretion of a judge – it should be guaranteed in law.

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