December 5, 2023

British Law Used to Shush Scandal Has Become One

They were not listening for the announcers, or even the score. Instead, as one of the journalists recounted, they were listening to the chanting crowd, hoping it would sing en masse about the extramarital affair of one of the players on the field.

The reporters knew that the player, married and among Britain’s most famous, had had an affair with a television personality. But the player has taken out a so-called super injunction — a stringent British legal measure that prevents newspapers from publishing a story on the topic, or even from making any mention that a court order has been granted.

The injunctions, intended to protect privacy, have become a scandal here in Britain. The BBC political editor Andrew Marr, who often grills Britain’s most prominent politicians on the Sunday show that bears his name, publicly admitted Tuesday that he, too, had used one to hide an affair.

And in recent weeks, the issue of the soccer player’s identity has become a matter of national debate, splashed across front pages and featured on television shows. Super injunctions have also been raised in the Houses of Parliament as an example of a curb on the freedom of the press by activist judges.

But in a world where millions converse on Facebook, Twitter and the like, the law cannot feasibly be enforced online. So the reporters listening to the soccer game were hoping that the boisterous fans of the rival team would have read about the affair on the Internet and then shout or sing the details to ridicule their opponents, providing a circuitous way of covering the story. But they were disappointed.

Britain’s press laws are widely seen as particularly restrictive, so much so that international celebrities and public figures often choose to pursue their libel suits here, in what is frequently referred to as “libel tourism.”

But the super injunctions offer a way of stopping stories before they come out and are frequently served on multiple newspapers to pre-empt any possible publication, said Charlotte Harris, a media lawyer who has represented public figures seeking injunctions and others arguing against them.

The injunctions are so protective of their subjects that only a few cases have been made public: another soccer player, John Terry, the captain of the English team, who was reported to have had an affair with the ex-girlfriend of a teammate; Fred Goodwin, the former chairman of the $40 billion banking group Royal Bank of Scotland, who faced criticism for his lavish payouts; and Trafigura, a multinational commodities company accused of dumping toxic waste in Africa.

Details of other cases may become well known within the media community, and rumors from other sources may even spread online, but once a super injunction is served news organizations must keep their readers in the dark. The injunctions take “a matter of hours” in private meetings between judges and lawyers, said Ms. Harris, the media lawyer. And though their secretive nature makes it hard to verify a precise number, reports in the British press suggest that as many as 30 super injunctions may have been granted to other prominent figures.

“The rich and powerful,” said Ian Hislop, the editor of the magazine Private Eye, a satirical weekly that often reports on the hypocrisies of Britain’s elite, “are increasingly turning to these orders.”

“They used at least to have to argue that something you’d printed was not true,” Mr. Hislop said referring to Britain’s strong libel laws, widely held to favor those bringing claims. “Now it doesn’t matter whether it’s true or not. They can suppress it with a super injunction and call it privacy.”

Private Eye had mounted a legal challenge to Mr. Marr’s super injunction last week, days before he admitted to the court order. Through a BBC spokesman, Mr. Marr declined to comment.

But speaking of his injunction, granted in 2008, he told the Daily Mail that he “did not come into journalism to go around gagging journalists. Am I embarrassed by it? Yes. Am I uneasy about it? Yes. But at the time there was a crisis in my marriage,” he said, adding that he was also concerned about protecting the young child of the woman with whom he had had the affair.

“I know these injunctions are controversial,” he said, “and the situation seems to be running out of control.”

The controversy first surfaced in 2009, when Trafigura obtained a super injunction against journalists who had obtained internal documents discussing the dumping of toxic waste in Ivory Coast. The documents, the company’s lawyers Carter-Ruck argued and the judge agreed, were private material.

The order was eventually overturned when a British member of Parliament tabled a question on the issue, using a centuries-old precedent known as privilege, which holds reporting on Parliament above the law. Later, WikiLeaks also published the document.

And last month another member of Parliament, John Hemming, also used Parliamentary privilege to reveal that Mr. Goodwin, the former chairman of the Royal Bank of Scotland, “has obtained a super injunction preventing him being identified as a banker.”

“Will the government,” Mr. Hemming asked, “have a debate or a statement on the issue of freedom of speech and whether there is one law for the rich, such as Fred Goodwin, and another law for the poor?”

Ms. Harris, the media lawyer, argued that “this is so much wider and more important than the rich and powerful protecting themselves.” Tabloid newspapers, she said, were using freedom of speech as a pretext to publish stories that were sometimes spurious.

Behind many of the injunctions she has worked on, she said, lies a seamy world of betrayals and tabloid bidding wars for kiss-and-tell tales, “not to mention blackmail and harassment of some of these people.”

“If you’re a public figure and a fan you’ve exchanged a few e-mails with suddenly tells you that she is going to ruin your career, that she’ll turn up at your kids’ school, or go to the press and make accusations, what can you do?” Ms. Harris continued.

“Instead of hysteria we need a proper debate on this,” she said. “What exactly is private and what exactly is not private?”

Mr. Hislop agrees that a debate is essential, and added that to ban publication in the age of the Internet, when many of the recipients of super injunctions can be revealed with a little careful searching online, is “bizarre; it’s ludicrous.”

“I suppose those of us in print should be flattered,” Mr. Hislop said, “that only dead-wood publications count for these judges.”

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