As you would expect, the UK’s tabloid newspapers are incandescent at the decision not to lift what has become popularly known as the “three-way gagging verdict”. After months of legal and popular debate, the Supreme Court ruled that the public identification of a celebrity, who allegedly had a threesome with another couple, could have a negative impact on the couple’s young children, given the likely media firestorm.
This, despite the couple being named in the US, Scotland and in numerous social media outlets in the UK – which was seen by many people, including most newspapers, as rendering the temporary injunction pointless.
Cue predictable press outrage. As you’d expect, The Sun – whose sister paper The Sun on Sunday brought the case to reveal the identity of the celebrities involved – went ballistic: “The day free speech drowned in a paddling pool of olive oil … outrage at celeb threesome gagging verdict,” read the paper’s front page splash the day after the ruling, warning that “celebs were yesterday granted a cheaters charter” and noting that “within minutes, the name of the celebrity involved saw a 9,000% surge in social media views.”
Equally predictably, the Daily Mail, having slammed the original imposition of the injunction as a “farce”, reported the story under the headline “MPs slam … ‘perverse’ decision”. The article quoted Tory MPs dismissing “unelected and out of touch judges”, “bringing the law into disrepute”. And of course the cry goes up again that our once free press is being “gagged”, “suppressed” and “shackled”.
So are they right?
Absurd? Americans can read the story
The press seems particularly fixated on this issue. The Mail’s front-page report on the original injunction last month began: “British justice descended into farce last night after the identity of a celebrity who cheated on his spouse was revealed in the US but blocked here.”
But isn’t there a problem here, especially for a newspaper so passionately committed to Britain being governed by its own, not foreign laws? Such injunctions can’t be obtained under US law (because of the famous First Amendment), so when a celebrity obtains a privacy injunction in the UK, their lawyers can’t prevent the likely reporting of the story in the US, and subsequent discussion there on social media, which can immediately cross national borders. This is the point at which the British press promptly calls it “farcical” that they can’t also report it.
But if the British courts accept this argument and lift these injunctions then US law would be, in effect, dictating the outcome of an English case and it would be on its way to becoming a global standard setter. But the unconditional priority US law gives to free speech over nearly every other interest is starkly different, not only from English law, but that of every other liberal democracy.
In a well-known decision called Florida Star, the US Supreme Court, astonishingly to European eyes, struck down an award of damages against a newspaper that had published the name and address of a rape victim, as an illegitimate restraint on press freedom. It brought further intimidation at the hands of her assailant.
If freedom is to not only pass but give effect to laws in Britain, then this first argument has to be resisted. US readers can read the story because their law is different. Full stop.
An unjustifiable threat to press freedom?
While much of our press – and many American lawyers – say yes, the response in most European and Commonwealth democracies is a firm no. This – the argument goes – is a narrow restriction on press freedom, designed not to stop the press reporting on matters of real public concern, but only to offer protection against damaging intrusion into a basic right that many democracies regard as of equal importance to free speech: privacy. Both rights are protected by the European Convention on Human Rights, as incorporated by the UK’s Human Rights Act.
So to win a case about a story that invades an individual’s privacy, the press needs a proper public interest argument – just satisfying public curiosity doesn’t suffice. That does mean judges drawing lines, you might say in a paternalistic manner, but the only alternative is for the press alone to do so. Or – in other words – for the market, ultimately, to determine what may and may not be published. The Leveson Inquiry revealed what happens when the British press, at least, are left to self-regulate like that.
In this case, all the judges agreed that there was no public interest in learning the identity of the celebrity – he hadn’t pretended to be in a monogamous relationship, so there wasn’t even a false impression for the press to correct. On the other side of the coin, the story went to the very heart of the couple’s private life, and judges feared the damage to their children’s welfare that an unrestrained media firestorm might cause. So privacy won that one.
But isn’t this futile?
This was the key issue on which the Supreme Court differed from the Court of Appeal. The difference turns on a conceptual distinction between breaching confidentiality and intrusion into privacy. In true confidence cases, such as those involving state secrets about national security, even very limited dissemination can destroy the value of the secret – since all your adversaries can now find it out.
But in this case, the courts were trying not so much to keep a secret as to prevent the further damaging intrusion that blanket coverage in the mass media would entail – particularly the possibility of the children or their peers learning of it. Now think about how often you’ve walked past a newsstand and seen the headlines, without even picking up the paper (let alone searching online). That’s the kind of difference we’re talking about.
There was also a contradiction in the newspapers’ argument. On the one hand the Mail complained the injunction meant “millions of people in England and Wales still cannot know” – but the very same article argued that the injunction was “ridiculous” because “every single person knows who it is”. Well, it can’t be both. If the injunction means that millions of people don’t know who it is (and the judgment notes evidence that around 75% of the public don’t know) then it has done at least some of its job.
People can find out, but they have to make a bit of an effort to do so, instead of it being splashed across headlines they can’t help seeing. And – in terms of the effect on the couple and their children – that is why the injunction still makes a worthwhile difference.