Last Friday’s ruling by Mr Justice Tugendhat which led to revelations about John Terry, the England captain, astonished lawyers and the media.
For several years newspapers have felt that a handful of judges were developing an ever tighter privacy law under the Human Rights Act. This apprehension increased some 18 months ago after Mr Justice Eady ruled that The News of the World had infringed the privacy of Max Mosley in publicising his sado-masochistic orgy. So fearful had the press become of writing about the sexual misbehaviour of public figures that The Sun decided before Christmas not to name a married Premier League football manager who had visited a brothel.
Accompanying the development of judge-made privacy law has been the growing use of so-called super injunctions, which mean not only that a case cannot be reported but also that its very existence cannot be mentioned.
These have been used in cases that had nothing to do with the alleged| sexual misdemeanours of public figures. Last October the law firm Carter Ruck preposterously warned The Guardian from reporting a question in Parliament about a super injunction granted to the oil company Trafigura, whose sub-contractor was alleged to have dumped toxic waste in the Ivory Coast.
That case marked the high confidence of some lawyers. When Schillings was granted an interim super injunction by Mr Justice Tugendhat in respect of John Terry ten days ago, the law firm must have felt that it had secured another victory. The News of the World, which had planned a story about Terry’s affair with an underwear model, had not even been informed by Schillings of its application. An interim super injunction was issued by the judge which was apparently broken last Thursday by The Daily Telegraph and on Friday morning by the Daily Mail, both of which papers referred to the case without identifying Terry.
Newspaper lawyers regard Mr Justice Tugendhat as being friendlier towards a free press than his colleague Mr Justice Eady, but few had expected him to lift the super injunction altogether, which allowed the naming of Terry. If the story had been published in the first place by The News of the World it would have got much less coverage than it now did; the Telegraph “splashed” with it instead of Tony Blair’s appearance in front of the Chilcot inquiry. Schillings’ lawyers have ended up with maximum bad publicity for their client and egg all over their faces.
Where does this case leave the press? Mr Justice Tugendhat sounds like an enlightened man. I was struck by his observation that “freedom to live as one chooses is one of the most important freedoms. But so is the freedom to criticise the conduct of others as being socially harmful or wrong.” That was not the line Mr Justice Eady took during the Max Mosley case. It remains to be seen whether Mr Justice Tugendhat’s ruling marks a sea change, or a momentary zigzag. Rest assured that Schillings and Carter Ruck will not give up, and remember that what one judge gives back another can take away again.
Beware of for sale signs at ‘The Times’
The American journalist Michael Wolff has suggested on his Newser website that the Murdoch-owned Times and Sunday Times may be for sale. Since Mr Wolff has recently written an acclaimed biography of Rupert Murdoch, anything he writes about the media tycoon is taken seriously. I gather his source is a prominent banker. But does the banker know what he is talking about?
The story makes sense in as much as The Times and The Sunday Times are losing over £50m a year. The Times has been mislaying the stuff in shedloads for as long as anyone can remember, though its Sunday sister was until quite recently highly profitable. One can see why Murdoch’s News Corp might want to get rid of the two titles. Moreover, Rupert’s son James, who runs the British end of News Corp, is probably less enamoured of newspapers in general and loss-making ones in particular than his father, through whose veins black ink still runs.
All the same, this rumour should be treated with caution. A few years ago a senior banker told me he was trying to find a buyer for the Financial Times. I expressed surprise that the newspaper was for sale. It’s not, he told me. He was acting “on spec”. The FT was then low in the water, and he assumed that if he found a plausible suitor he could go along to Pearson, the paper’s owner, who would be only too grateful. An imaginative banker can market a newspaper without its owner’s say-so.
Might this be a similar case? Bankers with an eye on a hefty commission may have concluded that The Times and The Sunday Times should be on the block even if they aren’t. This does not mean that the Murdochs have yet decided to sell the papers, or even that they want to.
Sir Max finally sees the light on Blair’s ‘terrible’ leadership
The Bible says “there is more joy in heaven over one sinner who repenteth than over ninety nine just persons who need no repentance.” What joy must have been registered over the transformation of Max Hastings from Blair loyalist to vituperative critic.
As editor of the London Evening Standard in 1997, Sir Max urged readers to support Blair. In those days the two men saw each other regularly. When he stood down in 2002 Tony Blair gave his old cheerleader a knighthood.
A cautious supporter of Britain’s invasion of Iraq, Sir Max did not see his friend as a warmonger. However, the love affair was cooling. As a regular contributor to the Daily Mail he became increasingly strident in his criticisms of Blair, though as a Guardian columnist he was more understanding. As recently as 2007 he wrote: “Tony Blair was unquestionably worthy of his office. It is the waste of his talents and opportunities that will command the dismay of posterity. He is a remarkable man, who has fallen from grace.”
A swingeing piece in last Friday’s Mail marked the culmination of Sir Max’s reappraisal, |with the judgement that Mr Blair was a terrible Prime Minister who had taken Britain into a “reckless” war. It is never too late to repent.