John Kampfner: The worrying rise of the rich man's weapon of justice

In the week that super-injunctions broke new legal ground, our writer attacks a growing threat to press freedom

Share
Related Topics

Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain's libel laws, than thejudiciary set a dangerous new precedent.

The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.

I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.

The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.

Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers "playing away" with team-mates' girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors' firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.

The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn't know that the cases even exist.

When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.

Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.

A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.

Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.

There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.

There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.

Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.

For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.

John Kampfner is chief executive of Index on Censorship and author of 'Freedom for Sale'. twitter@johnkampfner

The cases

1. A leading sportsman won a gagging order after learning that 'The Sun' was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman's private life could be "unlawfully exposed".

2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.

3. A married public figure won a gagging order to hush up his infidelity after claiming it would be "very distressing" for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of "hush money".

4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man's wife. The manager argued for privacy because he was trying to rebuild his life.

5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.

6. A high-earning footballer won an injunction preventing the reporting of claims of a "sexual liaison, encounter or relationship" with an international female sports star. The injunction banned publication of "private or personal photographs" on mobile phones.

7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.

8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions that he had an extra-marital affair with a woman.

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
iJobs Job Widget
iJobs General

Recruitment Genius: Trainee Health & Safety Consultant

£16000 - £20000 per annum: Recruitment Genius: A fantastic and exciting opport...

Recruitment Genius: Project and Quality Manager

£28000 - £32000 per annum: Recruitment Genius: This company is an independent ...

Recruitment Genius: Trainee Sales Executive - OTE £20,625

£14625 - £20625 per annum: Recruitment Genius: This role is for an enthusiasti...

Guru Careers: Financial Controller

£45 - £55k DOE: Guru Careers: A Financial Controller is required to join a suc...

Day In a Page

Read Next
Walt Palmer (left), from Minnesota, who killed Cecil, the Zimbabwean lion  

Walter Palmer killed Cecil the Lion with a bow to show off – and now he's discovering what it's like to be hunted

Louis Theroux
Britain's Prince William, Duke of Cambridge, arrives with his son Prince George at the Lindo Wing to visit his wife and newborn daughter at St. Mary's Hospital in Paddington, west London, Britain, 02 May 2015  

Prince George's £18,000 birthday gift speaks volumes about Britain's widening wealth inequality

Olivia Acland
Mullah Omar, creator of the Taliban, is dead... for the fourth time

Mullah Omar, creator of the Taliban, is dead... again

I was once told that intelligence services declare their enemies dead to provoke them into popping up their heads and revealing their location, says Robert Fisk
Margaret Attwood on climate change: 'Time is running out for our fragile, Goldilocks planet'

Margaret Attwood on climate change

The author looks back on what she wrote about oil in 2009, and reflects on how the conversation has changed in a mere six years
New Dr Seuss manuscript discovered: What Pet Should I Get? goes on sale this week

New Dr Seuss manuscript discovered

What Pet Should I Get? goes on sale this week
Oculus Rift and the lonely cartoon hedgehog who could become the first ever virtual reality movie star

The cartoon hedgehog leading the way into a whole new reality

Virtual reality is the 'next chapter' of entertainment. Tim Walker gives it a try
Ants have unique ability to switch between individual and collective action, says study

Secrets of ants' teamwork revealed

The insects have an almost unique ability to switch between individual and collective action
Donovan interview: The singer is releasing a greatest hits album to mark his 50th year in folk

Donovan marks his 50th year in folk

The singer tells Nick Duerden about receiving death threats, why the world is 'mentally ill', and how he can write a song about anything, from ecology to crumpets
Let's Race simulator: Ultra-realistic technology recreates thrill of the Formula One circuit

Simulator recreates thrill of F1 circuit

Rory Buckeridge gets behind the wheel and explains how it works
Twitter accused of 'Facebookisation' over plans to overhaul reverse-chronological timeline

Twitter accused of 'Facebookisation'

Facebook exasperates its users by deciding which posts they can and can’t see. So why has Twitter announced plans to do the same?
Jane Birkin asks Hermès to rename bag - but what else could the fashion house call it?

Jane Birkin asks Hermès to rename bag

The star was shocked by a Peta investigation into the exotic skins trade
10 best waterproof mascaras

Whatever the weather: 10 best waterproof mascaras

We found lash-enhancing beauties that won’t budge no matter what you throw at them
Diego Costa biography: Chelsea striker's route to the top - from those who shared his journey

Diego Costa: I go to war. You come with me...

Chelsea's rampaging striker had to fight his way from a poor city in Brazil to life at the top of the Premier League. A new book speaks to those who shared his journey
Ashes 2015: England show the mettle to strike back hard in third Test

England show the mettle to strike back hard in third Test

The biggest problem facing them in Birmingham was the recovery of the zeitgeist that drained so quickly under the weight of Australian runs at Lord's, says Kevin Garside
Women's Open 2015: Charley Hull - 'I know I'm a good golfer but I'm also just a person'

Charley Hull: 'I know I'm a good golfer but I'm also just a person'

British teen keeps her feet on ground ahead of Women's Open
Turkey's conflict with Kurdish guerrillas in Iraq can benefit Isis in Syria

Turkey's conflict with Kurdish guerrillas in Iraq can benefit Isis in Syria

Turkish President Erdogan could benefit politically from the targeting of the PKK, says Patrick Cockburn
Yvette Cooper: Our choice is years of Tory rule under Jeremy Corbyn or a return to a Labour government

Our choice is years of Tory rule under Corbyn or a return to a Labour government

Yvette Cooper urged Labour members to 'get serious' about the next general election rather than become 'a protest movement'