I am not quite sure whether to laugh or grind my teeth at the frenzied song and dance being performed by the newspapers over
the so-called “super-injunctions” which have been granted by High Court judges to preserve the “privacy” of various philandering celebrities.
The editors of such distinguished moral arbiters as The Sun, the Daily Mirror and the Daily Mail see the activities of the judges as a serious threat to freedom of speech, which they regard as the foundation of our democratic way of life.
In their view, being denied the right to expose the bedroom practices of a few actors and footballers on their front pages is tantamount to censorship, and comparable in constitutional terms to suppressing the collected works of Milton or Shelley.
Who are these judges, they ask, to usurp the power of Parliament and make up the law as they go along?
What’s more, they say, the courts are only dishing out these injunctions to the very rich. Displaying an unaccustomed concern for the weak and poor, these editors argue that only the wealthy can afford the enormous cost of going to the High Court. It proves, they say, that there is one law for the rich and another for the poor.
To which my first reaction is: “Well, blow me down. I’d never have noticed that shocking fact if you hadn’t drawn my attention to it. And since when have people such as Daily Mail editor Paul Dacre, with his million-pound-plus salary, been so concerned about the poor and the powerless?”
But there are also rather weightier responses to the pompous preaching of the newspapers. For a start, it is absurd to
bracket the exposure of a pop star’s sexual peccadilloes with the right to expose massive public wrongdoing. Milton didn’t write Areopagitica to assert the right of the News of the World to tell its readers who some Manchester United star has been going to bed with.
Yes, yes, I know about the case of the super-injunction granted to Trafigura to enable the company to conceal the dumping of toxic, health-threatening waste in West Africa. But that was a gross misuse of an instrument intended, under European human rights law, to protect personal privacy.
It was successfully challenged in Parliament rather than the courts, and it eventually collapsed. We don’t need to throw open everyone’s bedroom doors to ensure that it doesn’t happen again.
As for the question of the alleged imbalance between rich and poor litigants, that is a red herring. The fact that virtually all the super-injunctions known to exist have been granted to rich celebrities doesn’t prove the case; the imbalance is simply down to the fact that only rich celebrities need them.
The Sun and the Mirror don’t go poking about in the sex lives of shop-girls and road-sweepers for the very good reason that their little secrets don’t sell newspapers.
Only celebrity secrets have that power, and celebrities are almost invariably rich enough to pay court costs.
So what the controversy boils down to is that the tabloid newspapers want to go on selling copies by telling us who is sleeping with whom among the rich and famous, and they are dressing up their claim to continue doing this in a pompous but wholly spurious argument about the sacred right of freedom of speech. But this controversy isn’t about some God-given right to know smut and
tittle-tattle; it is about the profit and loss account of Rupert Murdoch’s News International. It’s as simple as that.
What about those pesky, unelected judges? Well, yes indeed, they are “making up the law as they go along”.
But that is what judges have been doing in this country for hundreds of years, and the result of their activity is the Common Law, widely regarded by jurists as the centrepiece, and to some perhaps even the glory, of our legal system.
This vast body of judge-made common law covers whatever isn’t specified by statute law – in other words, acts of Parliament. So the judges are “making up” privacy law because Parliament has failed to do the job.
To make matters worse for the judges, Parliament recently adopted the European Convention on Human Rights into statute law. This establishes a right to privacy which did not exist in English law before.
The difficulty is that the convention does not specify precisely what the new right encompasses. So the current surge of applications for injunctions arises from individuals claiming their newly established right to privacy in their sex lives. What are the judges supposed to do with these claimants – send them off to talk to their MPs?
Recently I have been re-reading some of George Orwell’s superb “As I Please” columns in the wartime Tribune, and came across a splendid passage on the “unbearable silliness” of Britain’s pre-war press.
He argued that newspaper proprietors had an interest in maintaining optimism, because it was good for trade and therefore for advertising. So it was a sound idea to divert readers’ attention away from harsh realities and towards “giant pandas, channel swimmers, royal weddings and other soothing topics”. Yes, royal weddings – and Orwell was writing in April 1944. But even he didn’t foresee rich footballers. They were yet to come.
