A new case confirms that a judge-made privacy law, largely developed by Mr Justice Eady, has transformed the way in which the tabloids in general and the News of the World in particular operate.
Last Thursday The Daily Telegraph reported that Colin Montgomerie, the golfer, who is Europe's captain during this autumn's Ryder Cup in the United States, had used an injunction to prevent the publication of a story about his private life.
The following day The Sun carried a piece about Paula Tagg, described as an "ex-lover" of Mr Montgomerie, who is "subject to a legal gag over [his] sex life". Evidently Ms Tagg has a story about Mr Montgomerie which she would like to supply to a newspaper, almost certainly the News of the World, but is unable to do so because of the injunction. Whether it was a "super-injunction" – a device that prevents the press from even reporting that an injunction has been issued – is disputed, but we did not know about it until the Telegraph ran its story.
Most of us probably have little interest in Mr Montgomerie's private life. Not being a golfer, I have no interest in him whatsoever. What is disquieting is the principle. The idea that a judge such as Mr Justice Eady can issue a "gagging order" whose very existence cannot even be reported should be disturbing to anyone who believes in a free press. Super-injunctions have been issued in cases which have nothing to do with anyone's sexual practices.
It is also worrying that under his interpretation of Article 8 of the Human Rights Convention Mr Justice Eady should have unilaterally narrowed the scope for reporting on the private lives of well-known figures where there is a public interest argument. His ruling in 2008 that the News of the World breached Max Mosley's privacy in reporting what was supposed to be a "Nazi orgy" was pivotal. Some of the participants donned uniforms for the occasion. Blood was shed, humiliations inflicted, and German spoken in a sado-masochistic free-for-all.
In what seemed to me a dotty judgment, Mr Justice Eady ruled that he would have probably found in the newspaper's favour if it had been a Nazi orgy because "the people of all races and religions" whom Mr Mosley encountered in his job as a motor racing boss might have been shocked. However, he did not believe it had been a "Nazi orgy". Others might argue, as did Dr George Carey, the former Archbishop of Canterbury, that a newspaper is justified in reporting any sort of orgy involving a public figure.
Mr Justice Eady has, however, moved the goalposts. And yet it is not clear exactly where they have been moved to. Earlier this year his colleague Mr Justice Tugendhat lifted a temporary super- injunction preventing the media from reporting that the England captain John Terry had had an affair with the former girlfriend of a team-mate. Because of Mr Terry's liking for publicity, his attempt to gag the press was deemed disproportionate, and publication was allowable. For unknowable reasons it isn't in Mr Montgomerie's case.
ABCs show an appetite for serious magazines
The latest Audit Bureau of Circulations magazine sales figures do not provide happy reading for many publishers. Amongst women's magazines, both Cosmopolitan and Company took a pasting, down 9 per cent and 5.6 per cent respectively year-on-year. Lads' mags are mostly on the slide too. So is Richard Desmond's celebrity OK!, though two new celebrity publications he has launched are doing well.
Other magazines which have fallen significantly include Reader's Digest, Time Out, and the BBC's Top Gear and Gardeners' World. (The BBC's Lonely Planet launched in 2008 was, however, up 34.4 per cent year-on-year.) Reader fatigue combined with the effects of the recession and competition on the internet is hurting many publications. Over the past decade overall UK magazine sales have declined by some 25 per cent.
There is, however, one area which remains resilient and in some cases buoyant – serious mags. The Economist, which continues to power ahead around the world, rose 4.2 per cent year-on-year in the UK to 195,244. Private Eye was flat. The Week grew 6.7 per cent to 176,680. The star performers were both monthlies – the peerless Oldie (up 9.1 per cent year-on-year) and Prospect (up 10.3 per cent.) The Spectator was one of the few serious magazines to buck the trend, with sales down 6.3 per cent. Its left-wing rival The New Statesmen did not report figures.
Whereas all upmarket newspapers have lost sales in varying degrees over recent years, many upmarket magazines have increased them. I cannot provide a complete explanation, but it is clear that these magazines have a very limited presence on the web. If you want to read them you have to buy them. By contrast, quality newspapers are, as the saying goes, in a different place.
Tea time in Wapping
The Sun ran an interesting piece about rising prices last week. This told us that gas and electricity prices are expected to rise by 5 per cent, though it was not wholly clear over how many months. Petrol may go up by 10 per cent. The highest expected price hike was car insurance, pencilled in at 15 per cent. The second highest was scones at 11 per cent.
Scones? Are Sun readers particularly exercised by the price of scones? Do they even eat them? I would have thought that they were more likely to be a preoccupation of Telegraph readers, though even they probably have more pressing things on their minds. Perhaps Sun executives have a fantasy about their readers discussing scone inflation in the village pub. "Scones is up again, Bert." "Yep. They've risen a farthing since Christmas. Diabolical."
s.glover@independent.co.uk
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