Tuesday, May 24, 2011

The right to know shit

I'll put something right upfront, one career opportunity I'd like to see disappear from the world has the job description 'fuck a famous person and then sell your story'. The press is a plague rat taking it's fetid filth from home to home, from brain to brain for no other purpose than it wants to sell units. If it ruins lives and destroys our culture at the same time, well it's the profit margin that matters isn't it?

Any law and any judge that gets in the way of printing the passing tittle tattle that is the bread and butter of press work has to be brought down. They have to be campaigned against because the untrammeled rights of the press have to trump things like common decency or a society that cares about the welfare of its members.

Now we have a vacuous MP joining in as an unpaid(?) lobbyist for the filth factory, using up valuable Parliamentary time to name someone everyone knew the name of already. John Hemming should step down and let someone who is interested in politics take his place in the House. Whilst Hemming took a malicious glee in naming a footballer whose privacy was protected by an injunction he could have been discussing Libya, climate change, the use we could put Obama's visit to or, God forbid, one of any number of pressing issues his constituents are facing.

No, not for Hemming the route of discussing changing legislation he appears to disagree with, he simply subverted it and in the process showed his utter contempt for the real lives of those involved.

For while there is a general issue around whether the press has the right to print anything it God damn pleases, no matter how vile and mendacious, there are also specific issues around this case which prompted the judge to grant an injunction in the first place. Hemming would have known this had he taken a moment to acquaint himself with the court judgment.

Let's pull out some salient points shall we? Do read the whole thing if you have time.

  1. On 14 April, News Group Newspapers Ltd was represented by leading counsel, Mr Richard Spearman QC, who did not oppose the grant of an injunction over the short interval before the return date. Ms Thomas was not represented, and indeed had not been notified of the hearing, since on the evidence I was satisfied that there would otherwise have been a risk of further disclosure of private or confidential information prior to her being served with the order.
  2. The Claimant's witness statement was to the effect that Ms Thomas had made contact with him by various text messages in March, which led him to conclude that she was at that stage thinking of selling her story, such as it was. She told him by this means that she wanted, or "needed", a payment from him of £50,000. It was against this background that he agreed (he says with some reluctance) to meet her in a hotel where he was staying in early April of this year in order to discuss her demands. Although he had no wish to meet, he eventually agreed because he was concerned that she would go to the newspapers if he refused. On that occasion, which was according to his evidence only the fourth time they had met, they were together for no more than 30 minutes. She had asked him to provide her with a signed football shirt, which he did, but he told her that he was not prepared to pay her the sum of £50,000.
  3. The next development was that she asked to see him again, in a different hotel, a few days later (where he was also staying). He agreed with reluctance and on this occasion, as she had requested, provided her with some football tickets.
  4. It now seems that the Claimant may well have been "set up" so that photographs could be taken of Ms Thomas going to one or other, or both, of the hotels. Although the position is not yet by any means clear, the evidence before me on 14 April appeared to suggest that Ms Thomas had arranged the hotel rendezvous in collaboration with photographers and/or journalists. He first began to "smell a rat" when she told him at the first April meeting, perhaps feigning innocence, that she had been followed and recognised when she visited the first hotel.
  5. On 12 April, the Claimant sent Ms Thomas a message to say that he did not want any further contact with her. Then, in something of a quandary, he thought better of it and sent her a further message the following day. This was to convey to her that he might be willing to pay her some money after all. By this time, however, she made it clear that she was looking for £100,000. She later texted him to say that there was a journalist outside her house.
  6. The evidence before the court at that point, therefore, appeared strongly to suggest that the Claimant was being blackmailed (although that is not how he put it himself). I hasten to add, as is obvious, that I cannot come to any final conclusion about it at this stage. I have to make an assessment of the situation on the limited (and untested) evidence as it now stands. (That is what is required by s.12(3) of the Human Rights Act, to which I shall return shortly.)
  7. Ms Thomas made contact with the Claimant again on 13 April and asked him to call her. When he spoke to her, he formed the impression that she had someone with her – probably a journalist. At all events, she told him that The Sun was thinking of publishing a story to the effect that they had had an affair for some six months and that this account would be supported by photographs of her at or near the hotels where the April visits had taken place. She did not give any indication that she herself was in any way responsible for this. It is hardly likely that she would have done so, of course, if she was still hoping to extract money from the Claimant. It seems, nevertheless, that The Sun was ready to take advantage of these prearranged meetings in order to be able to put forward the claim that it was The Sun which had found him "romping with a busty Big Brother babe". This was no doubt to give the impression, which Ms Thomas herself may have fostered, that a sexual liaison between them was still continuing at the time of the two hotel rendezvous in April.
  8. At all events, it seems probable that she had agreed at some point to contribute to the story in The Sun that was published in its issue for 14 April (i.e. prior to the hearing of the injunction application). It is thus ironic that Ms Thomas has subsequently complained of the court's supposed unfairness in according anonymity to the Claimant but not to her. She was already identified, apparently of her own volition, before any application was made to the court. It seemed to me that the Claimant was fully entitled to the protection of anonymity at the time he came before the court on the first occasion – not least for the reasons acknowledged and explained by the Court of Appeal in JIH v News Group Newspapers Ltd [2011] 2 All ER 324 at [40]...
  9. The courts are required to carry out a balancing exercise between competing Convention rights, as was always overtly acknowledged by the government prior to the enactment of the Human Rights Act 1998. It was, for example, explained by the then Lord Chancellor, Lord Irvine, when the bill was before the House of Lords on 24 November 1997 (Hansard, HL Debates, Col.785). He said that any privacy law developed by the judges following the enactment would be a better law because they would have to balance and have regard to both Article 8 and Article 10 (as indeed has been happening over the last decade). When the statute came into effect in October 2000, it explicitly required the courts to take into account Strasbourg jurisprudence when discharging those responsibilities.
  10. Despite this long history, it has for several years been repeatedly claimed in media reports that courts are "introducing a law of privacy by the back door". Yet the principles have long been open to scrutiny. They are readily apparent from the terms of the Human Rights Act, and indeed from the content of the European Convention itself. Furthermore, they were clearly expounded seven years ago in two decisions of the House of Lords which was, of course, at that time the highest court in this jurisdiction: Campbell v MGN Ltd [2004] 2 AC 457 and Re S (A Child) [2005] 1 AC 593.
  11. Since those decisions were promulgated in 2004, the law has been loyally applied by the courts in a wide variety of circumstances and exhaustively explained in numerous appellate judgments. In particular, there are a number of important decisions of the Court of Appeal in addition to those I have already mentioned: see Douglas v Hello! Ltd (No 3) [2006] QB 125; McKennitt v Ash [2008] QB 73; HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57; Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103; and Murray v Express Newspapers [2009] Ch 481. This does not purport to be an exhaustive list, but it will suffice to establish beyond doubt the legal framework within which the courts are required to operate on applications of this kind. It is widely known that the House of Lords refused permission to appeal with regard to each of the last four cases I have listed. This can only, surely, have been on the basis that it was by that stage recognised that the principles were sufficiently clearly established.
  12. The majority of cases over the last few years, in which the courts have had to apply those principles, would appear to be of the so called "kiss and tell" variety and they not infrequently involve blackmailing threats. Blackmail is, of course, a crime and in that context the courts have long afforded anonymity to those targeted as a matter of public policy. That has not hitherto been questioned. In the modern context, against the background of the Human Rights Act, it is equally clear that the courts have an obligation to afford remedies to such individuals, to discourage blackmailers and to give some protection in respect of personal or private information where there is a threat of revelation...
  13. I have to consider whether there would be a legitimate public interest in the revelation of this particular information, in so far as it is not already in the public domain, and whether publication would contribute to "a debate of general interest", in the sense conveyed by the European Court of Human Rights in such cases as Von Hannover v Germany (2005) 40 EHRR 1. Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or again, echoing the terminology of the Press Complaints Commission Code, would publication in some way prevent the public from being seriously misled?
  14. As in so many "kiss and tell" cases, it seems to me that the answer, at stage two, is not far to seek. Indeed, it was not even argued that publication would serve the public interest...
  15. ... It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].
So, the paper did not argue, in fact could not argue, that this story was in the public interest and the court had the concern that there was potentially evidence of a blackmail plot. Well done Hemming, you may have just publicly facilitated a blackmailer. Twat.

As Burd argues today "For everyone to make this case the cause celebre of all that is wrong with the system is misguided.  There is no public interest here;  this particular footballer has always been an intensely private individual;  the court papers suggest less than fragrant behaviour by the woman involved who appears to have colluded with the media to try and create a story worthy of their attention;  and he has never created a public persona based on his private personage.

"I couldn’t even tell you how many children he has or what his wife’s name is, such is the low profile he has given his family throughout his career. This is entirely the wrong case upon which to demonstrate that the law is an ass and to try to tease out the balance between article 10 (the right to freedom of expression) and article 8 (the right to private and family life)."

However I don't agree this is the wrong case. It is entirely the right case to show that the law is there for a good reason. Where it is used to prevent actual news getting out it needs fixing, but the row over this story shows absolutely clearly that the press are not interested in reporting the news they are only interested in salacious gossip no matter who it hurts, and no matter whether it is substantially true or not. We should have laws to prevent this kind of reporting.

It's also worth noting, as Jennie does, that this is not judges running wild inventing laws but judges making perfectly coherent decisions based on the laws that are in place. If there is something wrong with those laws let's change them, but sweet Jesus let's not change the law to allow the press the power to destroy the lives of footballers.

Right now there is a war being waged to grant the press the power to pry into any aspect of any one's life and print half truths about them for a momentary flash of titillation. Some people have leaped into the fray to enjoy sticking two fingers up to the law with a warm glow that's it's all being done in the name of high principle. I think these people have chosen the wrong side with the best of motives - but I'd like them to reconsider.

We need to challenge the power of the press in the country, not act as its outriders. Until they demonstrate a willingness to exercise that power responsibility we should be holding them to account and limitting their influence. That's my view anyway, but then again I'm sick of the lies, the blackmail, the corruption and the foul influence the press have on our political system.


max said...

We may want to balance this against for example the right of the Guardian to report about the Trafigura affair and the right of the public to know about that.
I really find these gagging orders a medieval thing, if there may be occasional good reasons to deploy them the fact is that the scope for abuse is immense.

George Potter said...

Whilst I agree with your sentiments, I think you're being rather harsh on Hemingway. Super injunctions are a bad thing and should be opposed.

However, the only reason they exist is because of the failings of the press and because of the failings of the PCC to actually enforce it's code of practice. If we could get that sorted out then it would solve most of the problems with super injunctions overnight.

Peter Cranie said...

It's taken me a while to get here, but I just wanted to say that this is an outstanding post Jim. It needed saying, and some national columnists are saying it as well now.