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Tuesday, May 10, 2011 

Injunction hysteria and the failure of Max Mosley.

It's difficult to shake the feeling that this week's latest outburst of injunction outrage on the behalf of the tabloids and certain sections of what was once the broadsheet press wasn't so much to do with the mysterious InjunctionSuper tweeter (twatterer?), although they provided the excuse to clear the front pages, and much more to do with the fear that Max Mosley would triumph with his case at the European Court of Human Rights. Having so firmly established that philanderers and blackguards are effectively subverting democracy itself by stopping the popular press from reporting on their exploits, had Mosley won we would now be drowning in a veritable sea of anti-European, anti-liberal, anti-'uman rites venom, the death knell of the British media as we currently know it all having been all but sounded by an unelected elite sitting in judgement from afar.

Happily, and just to confound the caricature of the judges in Strasbourg as often depicted as interfering, foreign lunatics and incompetents, they quite rightly decided that Mosley's Article 8 rights had not been breached by this country lacking a mechanism through which newspapers must inform prior to publication those individuals they plan to run an expose or similar about. This wasn't because in Mosley's personal case there hadn't been a quite despicable breach of privacy, it was more that the circumstances were something approaching unique. As Justice Eady made clear in his ruling back in 2008, the supposed "Nazi element" of Mosley's spanking orgy was a construct aimed at giving the story a public interest defence, even while he accepted that the paper's editor and Neville Thurlbeck thought there was such a flavour, not least because they saw what they wanted to see. Had the paper simply gone with the spanking story and informed Mosley prior to going to press, an injunction would almost certainly have been granted had he taken legal action. Relying instead as the paper did on the story being totally in the public interest as it exposed the son of the fascist leader Oswald Mosley involved in sadomasochism with Nazi overtones, the ECHR's reasoning is that even if there had been a stricture where the press have to inform those they intend to write about he would have been unlikely to fall under its terms.

The Guardian, which while not exactly rallying to the side of the tabloids has been quietly concerned over the recent supposed spike in injunctions, made a third-party submission to the court which made the obvious argument against just such a requirement as Mosley was asking for: that rather than covering only cases where personal privacy was involved, it would apply across the board. While it's mainly standard journalistic practice to inform individuals or companies that they're about to have a report on them published, not least to give them an opportunity to comment, the Trafigura scandal makes plain just how some will seek to have the most destructive, illegal behaviour swept under the carpet. The ECHR in its conclusion made clear that what Mosley was asking for has the potential to have a "chilling effect" on the right to freedom of expression. Along with doubts over just how effective it would be and how such a "public interest" mechanism would work, there was really no other option than for the court to make clear Article 8 does not demand a legally binding pre-notification requirement.

There is no doubting however just how successful the tabloids have been in turning their woes into a matter of seeming immediate national importance. Away from the very few number of cases where the granting of an injunction has been questionable, or where the terms have been arguably far too broad, most have just been typical tabloid tales where the person involved is as much being humiliated and embarrassed because of their fame rather than down to the heinousness of their actions.

Take for example the supposed "world famous" actor, who if he is who we're led to believe I had never heard of before (he's not Ewan McGregor, despite initial rumours) and his dalliance with Helen Wood, the sex worker who did a number on Wayne Rooney. One of his pleasures apparently, again for the reason that we don't unequivocally know, involved a dildo being "used" on him. Such a detail, while not exactly out of the ordinary, is the kind of fact that people remember and snigger about. It is the sort of thing that leads to children and relations being bullied and similarly humiliated. This person is not any kind of direct role model to children, as the tabloids claim footballers and other prominent stars are, nor does he make money out of selling his image as such. He's simply a man who because of his acting work is considered fair game and is grist to the mill. As prostitution itself is not illegal (soliciting is) he's committed no crime other than one of stupidity. There is no public interest in him being exposed in such a way, yet we apparently "know" about it regardless of the injunction.

Let's not pretend either that Twitter, blogging, social networking or the internet on their own make such injunctions and potentially a privacy law untenable and unenforceable, as has been claimed. The rumours about the applicants all have to begin somewhere, and it's more than fair to say that the newspapers themselves have been getting incredibly close to breaching them on their own, dropping almost excessive hints in some cases. Private Eye, which always faces both ways when it comes to the tabloids and their obsession with the sex lives of the rich and the famous ran a "lookalike" in its last issue in which Wayne Rooney was compared with the man alluded to above. Elsewhere it all but named the footballer involved with Imogen Thomas, while reiterating how the papers had covered the injunction involving the TV man who had an affair with a co-star, described more than once as "shameless".

What is apparent is that even if they end up not being able to publish a story which might shift a few extra papers, the tabloids seem to be determined that it gets out there somehow. As some predict, this latest outbreak of belly-aching about how unfair it is not to be able to ruin lives will probably peter out. No one seriously expects the government, even this one, to legislate, not least because it would have to almost certainly draw up some privacy protections which the tabloids would complain bitterly about even while removing the wider threat to their profit model. Judges will continue to cop the flak for making nuanced decisions which politicians are too cowardly to get involved with. Who though could possibly blame them when we have such a wonderful, law-abiding media?

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