Scum-watch: A charter for bullshit.
It's a relatively rare occurrence for any newspaper to move its main editorial, the thundering voice of its authority, onto its front page. Those who've mercifully missed seeing today's Sun might well then be surprised to learn that it chose today to do just that, even if it wasn't the paper's main story. Has the paper weighed in on the turmoil in Egypt, calling on the hated Hosni Mubarak to go, Rupert Murdoch being a long noted advocate of freedom and democracy? Or has it instead passed comment on a topic much closer to the paper's heart, the latest profligacy and avarice being displayed by some of the nation's football clubs?The answer is neither of these things. No, something much more important is occupying the attention of the Sun's leader writer, and that is of course something affecting the Sun itself first and foremost. Yesterday the Court of Appeal ruled that a sportsman granted an injunction preventing the publication of allegations against him could remain anonymous while the outline of what he was accused of, without naming those involved, could be reported. This overturned a ruling that had previously reached the opposite conclusion: that the sportsman could be named but the allegations against him could not.
For those of you still awake, fascinated as you doubtless are by the legal ramifications of yet another asinine legal battle between a footballer accused of cheating and a tabloid barred from splashing on the juicy detail, it's understandable why the Sun and tabloids in general are so angered by the ruling, especially as it looks as if it could become key in the emerging case law surrounding super injunctions and the balancing of articles 8 (right to privacy and family life) and 10 (right to freedom of expression) of the Human Rights Act against one another, although not for the reasons the Sun disingenuously expounds, which we'll come to. While the name of someone alleged to have done something wrong can sell newspapers or bring in hits, even if what he or she's accused of isn't allowed to be discussed, that's not so much the case where the details can be alluded to in outline but the name itself has to stay secret. Anyone can have had an affair or slept around while in an apparently happy relationship, and many do; it's only when the names come out that anyone really becomes interested, or at least pruriently interested, which is essential to understanding the entire thing.
The real reason why the tabloids were opposed since the outset to the insertion of the European Convention on Human Rights into British law was that Article 8 had the potential to undermine a substantial part of their business model: the exposure of petty philandering and kiss 'n' tells. And so it hasn't really come to pass. As the last few years has shown, just as some celebrities and sports personalities have been able to stop the tabloids from splashing on their sexual escapades, others have not been so lucky. The Sun's attempt to frame this latest ruling as a "major blow to freedom of speech" is nonsense: it changes nothing on the actual score of the press being stopped from reporting on infidelity in general.
Instead it pounces on one of the very particular details to this latest case. JIH, as we can only refer to him, had already been caught with his trousers down once by the press, with the story appearing without him becoming aware of it beforehand or being warned by the newspaper. He did however get wind that another woman he is alleged to have had an affair with, referred to in the ruling as "ZZ", was about to sell her story to the News of the World, prompting him to take out an injunction. It's worth noting that this entire series of appeals concerning what could and could not be reported about the injunction stems from the initial agreement reached between JIH and News Group Newspapers (the parent company of the Sun and News of the World) which was in fact more restrictive than either that reached by the High Court or the Appeal Court yesterday, as neither the details nor JIH's name could be published. It was the High Court judge who felt he couldn't agree with that, as it took no account of the rights of the public. Unless that was a ploy on the part of NGN's lawyers, they were prepared to deny the public any right to know, something they're now pretending is what they've cared about all along.
In his judgement, the master of the rolls Lord Neuberger decided that the fact JIH had previously been exposed was crucial to the case, for the reasons he sets out:
In this case, I consider that the crucial factor is the previous story about JIH's alleged liaison with YY, which had already been published, without JIH's prior knowledge or permission. That earlier story involved a very similar allegation about JIH to that which NGN was proposing to publish as a result of ZZ's allegations. If we permitted JIH's identity to be revealed without permitting the nature of the information of which he is seeking to restrain to be published, then it would nonetheless be relatively easy for the media and members of the public to deduce the nature of that information: it would be a classic, if not very difficult, jigsaw exercise. It is true that the very fact that this decision means that we are revealing that JIH is a person about whose alleged sexual activity a previous story has been published, and that this will immediately narrow the field for those seeking to identify him, but, in my view, that point is of limited force: there have been quite a few stories of this nature relating to different well known people published in the printed and electronic media in the past two or three years.
This is definitely the case: while there's been the usual speculation you'd expect, no one seems to definitively know who JIH is despite the fact that he's been exposed before narrows it down slightly. Clutching at straws as ever, the Sun has turned this round, both in its article and leader to suggest that this in effect creates a "cheater's charter", whereby those previously ratted out or shown up have more protection than those who haven't. As Edward Craven points out in a excellent analysis of the ruling, this isn't necessarily true:
However the “efflorescence of anonymity orders” (to use the words of Lord Rodger) and the fundamentally fact-sensitive nature of the issue make further litigation inevitable. This is a contentious and rapidly evolving area of the law where important matters of principle frequently collide. Judges, journalists and lawyers should therefore expect further debate and discussion in the coming months.
Moreover, the Sun's claim in the article that the public are being prevented from receiving information that is true is also dubious to put it mildly. While it doesn't seem the case that JIH has attempted to sue regarding the first reports of his infidelity, he wasn't given any opportunity to respond to the allegations prior to their publication. That he did take one out when he became of the second set more than suggests that he contests their veracity.
The language used in the Sun's leader (reproduced in full at the end of this post) is incredibly hyperbolic even by the standards of tabloid editorials dealing with privacy. The ruling stands "morality on its head", "licences depravity" and through the culture of secrecy it promotes "undermines public life by allowing vice and hypocrisy to flourish". While it reminds of Paul Dacre's verdict on Max Mosley's spanking sessions, which he decided constituted "unimaginable depravity", the only real public interest defence which the Sun can point to is that the "public [have a] right to know the truth about celebrities who hide shameful secrets behind a hypocritical veneer of respectability." The problem is that even as the public continues to consume such tales of depravity and vice, they no longer seem to care about those involved unless it breaks a specific subset of laws. A case in point is Wayne Rooney, who last year was not only exposed for a second time as cheating on his wife with a prostitute, but who also shortly afterwards got a huge pay increase after he threatened to leave Manchester United. He might have been criticised in the short term, but the club's fans still chant his name with the same passion as they always have.
The Sun's argument would also have more force if those the tabloids have previously exposed had definitively been involved in such behaviour. Last year, months after John Terry lost the captaincy of England over his apparent affair with the girlfriend of a team-mate, a number of papers quietly apologised to Vanessa Peroncell over their coverage, more than suggesting that the allegations were in fact far from the truth. Similarly, its claims that it creates two-tier justice is laughable: exactly how many of those without fame or fortune are exposed in the national press over their sexual exploits, without first making themselves known in some way to the media? The resort to the slippery slope argument, that tomorrow it could be a cheating politician who attempts to protect the public becoming aware of their antics is also clutching at straws: not only as affairs in politics have long ago became "private matters" until they start affecting the way ministers do their jobs, but because those in government have never before resorted to the law to prevent such revelations, and show no indication of doing so now. What it comes down to beneath all the bluster is, as it always has been, pure financial self-interest, and the irony is that as personal privacy in the digital age becomes ever more confused and broken down, that has never been more apparent.
*The Sun's leader in full follows:
THE more a cheating celebrity drops his trousers, the more the law will cover up for him.
That is the disgraceful outcome of yesterday's Appeal Court ruling allowing a well-known sportsman accused of cheating on his partner with two different women to keep his identity secret.
This "Cheats' Charter" is a terrible blow to the public's right to know the truth about celebrities who hide shameful secrets behind a hypocritical veneer of respectability.
Showbiz personalities, sports stars and politicians now have an incentive to carry on betraying their partners - because the more they do it, the more courts protect their identities.
It also creates two-tier justice. If you can afford top lawyers you can buy secrecy denied to others.
Yesterday was the day Britain became a judicial banana republic.
The nation that created the rule of law bent its knee to a sportsman who fornicates his way through life like a dung hill rooster.
This wrong ruling stands morality on its head. It licences depravity.
Along with the rise of the superinjunction, this is another alarming step towards secret justice.
Superinjunctions are court orders sought by the rich and famous to gag newspapers. They are so strict papers cannot even tell their readers a superinjunction has been granted.
This culture of secrecy undermines public life by allowing vice and hypocrisy to flourish while papers are powerless to expose it.
It speaks volumes that Westminster stands by as Press freedom is eroded.
European privacy rulings, used abroad to provide cover for corrupt public figures, are being brought in through the back door.
Today it is a cheating sports star hiding behind anonymity. Tomorrow it could be a cheating politician.
It is vital for democracy we know the names of those who go to court to have newspapers silenced.
Once a nation starts down the road to secret justice, there is no telling where it will end.
Labels: human rights act, media analysis, morality, privacy, privacy law, Scum-watch, Sun-watch
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Oh yeah that's right. Celebrities and sports stars will be able to get away with cheating on their partners if the great and moral tabloid press cannot expose them.
What utter bollox!
Posted by
danfactor |
Friday, February 04, 2011 5:54:00 pm
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