Part II: Return Of The Gag

Oh, superinjunctions! We wish we knew how to quit you…

Of all the many undesirable things to have happened in this twelve-ton shit-tip of a year, the slow, silent descent back into the stinking mire of secret celebrity injunctions is arguably one of the worst.

Despite it being a widely held opinion that social media obliterated the injunction problem back in 2011 when Ryan Giggs’ name got plastered all over Twitter, surprisingly, it turned out that a handful of tweets was insufficiently powerful to destroy them forever. Instead, bit by bit, these sorts of gagging orders have been quietly returning to the fray.

There were a few quiet years, where it looked like everyone had seemed to grasp what a terrible idea they were. Then a footballer tried to hush up talk of an affair that he’d had. Then someone else tried to stop stories about him from surfacing in a glamour model’s autobiography.

Then, most notably, came the case of PJS v News Group Newspapers.

This was the one from earlier in the year in which [A WELL-KNOWN INDIVIDUAL] took out an injunction to prevent the Sun On Sunday from running a story about how he hosted olive oil paddling pool sex parties in five-star hotels. Events to which his darling spouse was not invited…

The story blew up. Not only did it contain all the hallmarks of a classic kiss’n’tell (meaning the tabloids went crazy for it), the peculiar details of it piqued the public’s curiosity too.

In turn, it reignited the debate of which elements of a celebrity’s private life are fair game when they make their money from maintaining a very public profile and courting the press whenever it suits them.

The resulting sideshow it created was huge.

PJS vs News Group Newspapers made its way through every level of the UK judicial system until eventually it reached the Supreme Court, where our nation’s most senior justices had to stage a serious discussion about whether or not [A WELL-KNOWN INDIVIDUAL] was legally entitled to host his olive oil orgies without any press comment.

In the end, the Supreme Court decided that – although a number of websites and international publications had revealed the names of the couple in question; although the details were plastered all over social media; and although national polling indicated that as many as one in four people in the UK already knew the supposedly protected identity of PJS – the injunction would still be legally enforceable.

Fair enough, you might think. Consenting adults are entitled to fuck whoever they want, over whatever item of children’s outdoor play apparatus they like, covered in whatever condiments they so choose. It’s no business of the press.

Which is fine. But this was still a bad decision.

And we don’t say that in a Daily Mail “JUDGES ARE THE ENEMY OF THE PEOPLE! THEY ARE TRYING TO STOP HONEST BRITISH CITIZENS FROM LEARNING ABOUT SEXUAL DEVIANCE THAT IS HAPPENING ON THESE VERY SHORES!” type of way.

We delight in celebrities having weird sex. The more of it the better. What’s the point in becoming famous if you can’t haul an inflatable paddling pool and a catering-sized drum of cooking oil up to the penthouse of a London hotel and bang as many strangers as you humanly have the capacity for? (Why else would you bother?)

Our issue is not a puritanical one. Sadly, it’s much more practical than that.

The problem with the PJS injunction is that it is standing in the way of some badly needed legal reform. The ruling in the case helps to prop up a bunch of old, nonsensical laws that are so badly suited for purpose that they are now actively damaging the freedom of the press.

And we’re not talking about the press’s freedom to report on salacious sexy stuff like antipasto fuckfests. What we’re talking about is the covering up of potential criminal fraud. What we’re talking about is the suppression of stories of sexual assault.

The same laws that celebrities are using, mainly out of vanity, are starting to have a dangerous knock-on effect in the real world – both on the fair reporting of genuine public interest stories, and also on the efficacy of the legal process for non-millionaires.

Tied Up In Nots

If you’ll indulge us in a miniature gripe first, we’d like to demonstrate just how ludicrous our national injunction law is.

As you may know, an injunction that is granted in England and Wales is only enforceable in England and Wales. Scottish citizens needn’t pay attention to it. Northern Irish citizens needn’t pay attention to it. Anyone anywhere else in the world needn’t pay attention to it, making it essentially worthless beyond our tiny, porous borders.

This has proved to be a major problem with our privacy law since at least the 1980s – highlighted most clearly in the case of Spycatcher.

There are a hundred and one people who can tell you the tale of Spycatcher better than we can, but the essential difficulty was this: Spycatcher was the name of a memoir, written by an ex-MI5 operative. The UK government was understandably keen to stop him from spilling any embarrassing secrets, so they immediately slapped an injunction on the book. As the injunction only held up in England and Wales however, the authors and publishers chose to print it and distribute it in Australia instead.

The book went on sale. In Australia. In the US. In Scotland. As there was no instruction to check for, or impound, any copies of the book when they arrived at UK Customs, the books easily made it to England – and the English and Welsh courts were unable to do anything about it.

Even in the 80s these injunctions were relatively simple to circumnavigate – and this was a full decade before the internet started becoming a regular fixture in many homes. Now that we’re constantly connected to a global communications network, the law is even more ridiculous.

Take the case of PJS. Other international users of Twitter and Facebook are perfectly at liberty to discuss the details of the injunction, but anyone in England or Wales who chooses to chime in on the conversation risks imprisonment or the seizing of their assets.

Our courts can insist that websites with an international reach install geoblocking filters to stop UK IP addresses from accessing injuncted stories so that English and Welsh readers can’t read them – even though you are only ever three clicks away from finding a different site which contains the information.

And what do you do about international phone calls?

Last year, we had an occasional slot on an American talk radio show – a seven minute slot on a show that we can’t legally tell you the name of in this context in case you go searching for it and we inadvertently ‘aggravate’ the injunction.

We would call in to talk to the hosts about the big media stories happening in the UK that week. In April, the only story there was to talk about was the PJS injunction. It was everywhere.

So the host asks us about it. We tell him that “a well-known individual” has taken out a pre-publication injunction, preventing the press from reporting a scurrilous sex story about him.

The host then casually mentions [WELL-KNOWN INDIVIDUAL] by name.

Standing on UK soil, we are bound by the terms of the injunction and therefore cannot identify him. Conversely, on the phone is an American. Unbound by the injunction, being broadcast live using an American transmitter, to an exclusively American audience, exercising his inalienable American right to free speech – he is repeatedly naming the injunction holder in our conversation.

What do we do? What is our legal obligation in this situation?

We can’t tell him to stop staying the name. We have no authority to do so. It’s his First Amendment right. He can say the name as many times as he pleases.

Can we say “Yes”? Does confirming it to an American audience count? The story had made the front page of certain US tabloids, so they probably knew the name already.

Can we say “We can neither confirm nor deny that”? You don’t actually have to say the person’s name out loud to breach the injunction. Hinting too heavily gets you in just as much trouble. Would our tone give it away?

Can we even keep the phone line open without being in breach of the terms of the gag? What if a nearby British citizen overhears our conversation? Does that constitute ‘broadcast’?

In the end, we kept a diplomatic silence and hoped that we’d get away with it.

But what if they were to release a podcast of their show? A podcast that is available internationally on iTunes. The show would be freely downloadable by anyone in the UK who happened to go looking for it, featuring audio of us trying desperately not to divulge details of a court-approved injunction.

Have we broken a law here? This may seem like a trivial matter to become obsessed over, but contempt of court is an extremely serious issue and the Attorney General doesn’t look particularly favourably on those who try to undermine the system – however lightheartedly the intent.

Technically, we could face prison if the courts decide that we have attempted to ‘frustrate’ the injunction with that radio appearance. Prison. Actual time inside. We could face unlimited fines too – and, as the Gawker case proved, it only takes one bad legal ruling and suddenly you’re out of business.

All for telling a story that is absolutely true.

No Laughing Matter

The details of the PJS case were relatively frivolous. Because of the paddling pool and the olive oil, it was easy for journalists to make jokes about (which they did, repeatedly). It made the whole thing seem kind of light and harmless.

But now a new superinjunction has been filed in the UK courts – one which uses the precedent set in PJS v News Group Newspapers regarding a person’s right to privacy in personal sexual matters.

The plaintiff in question has managed to do so with a proper superinjunction too, which means one of the double-strength injunctions that the press isn’t allowed to legally report the existence of.

However, thanks to the same deeply stupid geographical limits of injunction enforcements we’ve just described (and the variously independent powers within the different national courts within the UK) we’re able to tell you about it.

Unless you live in Northern Ireland.

If you live in Northern Ireland, and you’re reading this, you risk being in contempt of court. We know that sounds mad, but it’s true. You should probably shut your computer down, unplug it and step outside while the rest of us discuss this next bit.

Everyone else, gather round.

In this new case, the plaintiff is trying to do something much less amusing. He is trying (and currently succeeding) to cover up accusations of sexual assault.

He has managed to hire lawyers to make the argument that because the details of the case pertain to his sex life, they are private. As a person is entitled to a private life, thanks to Article 8 of the Human Rights Act, the Northern Irish press should therefore not be allowed to report that he has been arrested on suspicion of committing a series of sexual offences.

The judge agreed. The superinjunction was granted.

It’s not us making the leap to connect the two cases either, in case you’re wondering. As Private Eye recently reported, the covering letter that was sent out with the court ruling specifically cited “the recent Supreme Court decision of PJS v News Group Newspapers Ltd regarding the absence of public interest, as a matter of law, in stories involving the sexuality of public figures”.

There is, of course, an argument to be made for keeping the identities of those accused of sexual offences anonymous until the conclusion of their trial. This is probably not the arena in which to do it, as it’s a serious and sensitive discussion which is best had at a distance from silly jokes about olive oil and paddling pools.

But it actually doesn’t really matter which side of that argument you happen to fall on, personally. Injunctions are damaging in either instance.

If you believe that the accused do deserve anonymity, then surely they should be granted that as a matter of course in the legal proceedings. They shouldn’t have to purchase it as a premium extra.

If you believe that the accused don’t deserve anonymity, then there shouldn’t be a structure in place that allows them to ‘opt-out’ of public scrutiny just because they can readily afford the tens of thousands of pounds necessary to acquire an injunction.

Yet by continually issuing them to rich, powerful men who have “reputations” at stake, judges are at serious risk of developing a two-tiered justice system exactly like this – one that offers a smooth, silent and shame-free path if you have the money to pay for it.

As we said, the way to address the underlying problem here is not with injunctions, but with proper legal reform.

This isn’t just a one-off either. Another injunction (an anonymised injunction; not a superinjunction) was granted in early November to a recognisable millionaire whose business affairs are currently under investigation for potential involvement in serious criminal fraud.

We can’t tell you who that millionaire is though, because his lawyer successfully managed to convince a judge that his right to a private life outweighs the public interest in reporting his alleged financial misconduct.

The Kids Stay In The Picture

Unless this millionaire has been using his illicitly gained cash to fill up a paddling pool and host Scrooge McDuck-style sex parties in it, then there’s no way that financial fraud pertains to his sexual life – so there’s no grounds to make it private on that count.

So how did he do it?

Much like in the PJS case, the argument was made in court that the millionaire’s children would suffer were their father to endure any negative attention in the press. This was enough to clinch it. By virtue of having school-age children (and enough money to hire Max Mosley’s and Tony Blair’s old lawyer) stories regarding this guy’s allegedly dubious business activities are going unreported.

This is the other extremely dunderheaded reason why the PJS result was so bad. While there should undoubtedly be care and attention paid to the fact that innocent parties need to be insulated from the fallout as far as is practical, this sort of thing risks splintering the legal system into two further halves.

If you extend the full courtesy of privacy to parents so that their little ones are shielded, what happens when a childless celeb engages in the same acts? Privacy for them too? Or are they fair game?

We wouldn’t dream of suggesting that young children should always learn all about their father’s sex life from the front page of the Sun. But to cover up legitimate reporting of alleged criminal activity to spare them (as in the case of ERY)? Or to cover up the fact that daddy had a woman fired from her job after their off-screen affair went sour and he demanded that producers not renew her contract (as in the case of ETK)? Or to cover up the fact that you’ve been banging your teammate’s wife, because you’re worried you’ll have to give up your prestigious Daddies Sauce Daddy Of The Year award if you get found out (as in the case of LNS a.k.a John Terry)?

Judges, to their credit, do seem to realise there’s a problem with celebrities using their children as a catch-all blast wall. They go as far as to specifically point out in their rulings that they can’t make special dispensations in law that would inadvertently discriminate against those who don’t have children – but then they go ahead and do it anyway, and they appear to be doing sweet fuck all to actually remedy it.

By ruling in favour of the PJS injunction, rather than using it as a starting point to reform the system into something that actually works for everyone, they have taken us another step further down the wrong path.

The Remedy

We’re not suggesting that injunctions have no place in the legal system, or as a part of a free press. They do, and they serve an incredibly important function when correctly used (in blackmail cases; in matters of national security; for minors; for witness or prisoner protection). Granting them to celebrities to spare their blushes is not that function.

Railing against celebrity injunctions is not to excuse or encourage the excesses of our brutal tabloid press. The reason to be mad about PJS isn’t because we have a right to know about what PJS chooses to marinate his meat in. The reason to be mad about it is because it is revitalising an incredibly dangerous, shadowy part of the law which is already being used to dampen the effects of genuine scandals.

The British press does not exactly have a glowing reputation when it comes to covering celebrities. You needn’t look back too far to find examples of journalists being involved in illegal activity themselves to generate stories (the “Fake Sheikh” Mazher Mahmood; the phone-hacking scandal). We can fully understand the apprehension in letting hacks off the leash, allowed to run wild, their every criminal whim excused by the courts as a statement of freedom of expression.

However, the way to address that problem is not by implementing paid-for gagging orders.

Ideally there would be some effective system by which to hold the press accountable for their actions. Perhaps a regulatory body of some sort. An independent press standards organisation, or something like that?

Oh, that’s right. We already have that. It’s called IPSO. And the state is currently about six weeks from potentially turning that into a massive, smoking crater.

Which is where things start to kick up a notch…