April 27, 2011 Leave a comment
For all their secrecy, super injunctions have rarely been out of the news recently. They are emerging as a significant threat to press freedom in the UK. David Leigh of the Guardian has gone so far as to label them a “menace”. It is widely thought that they are manipulated by the rich as a form of reputation management. That is why it is so shocking that the latest addition should come from within the media.
Popular BBC reporter Andrew Marr has now revealed that he is a member of the ‘super injunction set’. He took out a gagging order in 2008 to suppress publication of details of his affair with another journalist. He claims that he acted to “protect his family’s privacy”, but has no intention of pursuing the court order further. This is hardly surprising. He is all too aware that he has found himself in a precarious position. When questioned on the subject, he replied with commendable candour: “Am I embarrassed by it? Yes. Am I uneasy about it? Yes.”
Other representatives of the media have made it clear that he should be embarrassed and uneasy about this. Ian Hislop has challenged Marr’s super injunction twice, and has censured his decision as “hypocritical”. It does seem somehow underhand for a working journalist to become the ‘enemy’ and restrict his peers in this way.
Marr is not the only one who feels ill at ease with the current situation. David Cameron was recently quoted as saying that he too felt “uneasy” about the power wielded by judges in granting injunctions. He has been joined by numerous others, including Julian Assange’s lawyer Mark Stephens, in opining that privacy law should be created by Parliament and not by the courts. These are precisely the pertinent questions: Where should the balance lie between protecting privacy and free expression? And who should make that decision?
Unlike France, the UK does not currently recognise a “right to privacy” per se. Whilst some commentators may insist upon talking as if we do, this is fallacious. What they usually mean is the right conferred by Article 8 of the European Convention on Human Rights. This is the right of each person to “respect for his private and family life, his home and his correspondence”, subject to the statutory qualifications. We may, however, be moving towards a “right to privacy” through the extension of Article 8 by the courts.
That is the very problem which the Prime Minister addressed. It is becoming increasingly clear that this concept of “privacy” is one of the biggest challenges facing the modern British press. Distinguishing between information that is private and that which is in the public interest is a serious problem, and one which is consistently raised. It would appear that the current rules on this are woefully inadequate, since we still cannot reach a workable answer. Cameron’s view is that this is a problem for the legislature to determine, so they should make this a priority. The current uncertainty is leaving the press vulnerable to the types of legal restriction we have seen.
Nonetheless, this is dangerous territory, so they should proceed with great caution. Concern for privacy should not ordinarily be allowed to trump freedom of expression, but should only serve as a defence in a very limited category of situations where individuals could suffer real harm. Andrew Marr himself endorsed this view today. Of course, how (and by whom) this harm is to be defined remains to be seen. This is one of the issues which must be worked out between Parliament and the judiciary. This is a problem which is becoming increasingly pressing, as today’s revelations have made clear.
Marr’s clear remorse reaffirms the contempt with which the super injunction is viewed by the media. Restriction of the press curbs their ability to earn a living as well as their freedom of expression. It is little wonder that they are concerned, but it seems they are right to be suspicious. Obtaining super injunctions is a costly process, meaning that it is only available to the affluent. This opens up the unacceptable possibility that the wealthy could abuse the court system to control the media for their own ends. Marr himself has expressed his belief that super injunctions are “controversial, and the situation seems to be running out of control.”
As disappointing as it may be when a super injunction such as Andrew Marr’s comes to light, it is positive that he has now come forward. Maybe this will spark a new trend for coming out of the super injunction closet. The interested public can only hope.