Blogging from the Highlands of Scotland
'From fanaticism to barbarism is only one step' - Diderot

Monday 23 May 2011

Super Injunctions and the "right to privacy"

(Please see UPDATE at end)

The current controversy, farce, call it what you will, about the "right to privacy" which people may or may not have in different circumstances and whether it should be possible to injunct not only mention of the underlying subject of the injunction, but the very fact that an injunction has been granted (in other words a 'super injunction'), has continued to grow. All of this is relevant to the Common Law of England and Wales; as was shown yesterday a Scottish publication has published some information subject to an injunction under English law, on the grounds (which seem pretty incontrovertible) that as Scotland has it own legal system, Scots Law, persons in Scotland are not subject to rulings by English courts, unless similar injunctions ('interdictions' in Scotland) are applied for and granted by a Scottish court. This is no different, in legal terms, from a US or French publication choosing to ignore a ruling in an English court. And vice versa or course. The fact that both England and Wales and Scotland are part of one political entity, the United Kingdom, is just one of the curiosities of British life.

Anyway what I have written above relates solely to the mechanics of what is going on, not to the underlying merits of the various cases and, going beyond that, the willingness of those subject to various laws to acquiesce in their effects.

Now I am not going to name the footballer named yesterday by a Scottish newspaper, and which I had already known for quite some time of course as it has been mentioned or alluded to regularly on the internet for many days. However, it is alleged that this footballer has been having an adulterous affair with a lady not his wife; the lady has been named (she is not the beneficiary of a super injunction), but I am not going to mention her name here either. So far as I am concerned whom the footballer or this lady whoose to have sexual intercourse with is a matter of complete indifference - the fact of me knowing or not knowing about it does not affect me in any way at all, nor does it affect 'national security' so far as I can see. They are breaking no law. Some people may consider the footballer, as a married man, a 'sinner' or morally flawed for having had sex outside marriage. For me, I simply do not care - it is a matter for the two individuals concerned and the wife and children of the footballer.

However, we British and indeed most nationalities have rather hypocritical attitudes to matters concerning sex. Most of us would be horrified if our own personal sexual life was plastered across the front page of a newspaper, but are 'titillated' to read of the goings-on of the rich and famous in this area. A few countries do seem to have a more 'sophisticated' view (or 'debauched' if you take a different attitude) of such personal matters where they have no effect on public affairs. The former head of the IMF, a French citizen, is currently undergoing legal process in the US because of the differences between the US and France relating to such issues - although it is clear that in that case it is not simply a matter of sex, but the exercise of power in a sexual context by one person over another, something which is tolerated in most societies, at least historically but probably contemporaneously too, far more than most would care to recognise or acknowledge.

So why do newspapers publish such personal information, which has no public dimension? Well, it is really very simple - it helps them to sell more copies, because many people (whatever they may say) enjoy reading about sex or 'famous people' acting in a way that some consider inappropriate. So it is basically about money. In that context it would seem sensible to me that there should be some element of privacy - not to protect a footballer, or indeed his children (that's his job and if he was really concerned about that then he wouldn't have done things which so many people would pay money to read about and which he could have predicted would be the case once the 'lust' was over), but simply because it really is not anyone's business but those involved. Only if society changes such that most people would not care about others knowing of their own sexual behaviour - always provided of course it is mutually consensual and not carried out using coercion of any kind for any of those involved - would it seem to become a matter of such indifference that publication would have no effect on a person's 'reputation', so would be unlikely to increase sales of any publication that chose to print stories about it. The financial imperative would have disappeared, so it is unlikely any newspaper would bother.

Until society does change, and most people's hypocrisy lessens, then individuals probably do require some legal right to privacy for their private life where it has no impact whatsoever on public affairs. The mechanism of achieving such privacy in the internet age with different legal systems and principles applying across borders is not immediately obvious to me.

Then you have cases where a person's behaviour in private does have an impact on public affairs - and sometimes it may genuinely be difficult to differentiate between those that do have an impact on public affairs and those that don't. I cite the case of a former newspaper editor and currently presenter of a major political discussion programme on television (yes, I speak of Andrew Marr) whose name was revealed generally a week or so back as having been involved in an extra-marital affair, despite him having secured a super injunction against such information being made public. Does his extra-marital affair affect the public affairs of the UK? Incidentally his partner in the affair is similarly involved in the media. Evidently it doesn't seem to have affected his role on the BBC, nor does it seem to have proved an impediment to his interview broadcast yesterday with the US President. In fact I knew about his affair (and the name of the partner) some years ago, having read about it in another blog, but I simply did and do not care - except to wonder at how a man so [ahem] ugly could seduce not just one woman (his wife), but a second; mind you his 'mistress' ain't no looker either, even if I have no idea about his wife. Human attraction is a very personal thing - some people go for looks, some for intellect, some for money, some for power, some no doubt go for other 'attributes'. The bottom line is that his affair is not relevant, I suspect, to his job or to public affairs so is no business of mine or anyone else not directly involved. So he had a right to keep this private if he chose to do so, although perhaps his questionning of the former Prime Minister about personal matters weakens his case somewhat - this is why such cases are not so clearcut as some would have us believe.

Similarly with the former CEO of The Royal Bank of Scotland who apparently had an affair with another senior executive of RBS during the period leading up to its financial collapse, with that person having apparently been promoted several times during his tenure. Could there have been, or the legitimate perception that there was, a 'conflict of interest' or defective decision-making associated with his professional functions?

A law, if it is to generally accepted by the people to whom it applies (i.e. all of us) must be founded on common sense and generally regarded as 'fair'; it must also take into account the fact, however regrettable it may be to some, that the writ of an English court (or indeed a Scottish, French or US court) runs only within its own jurisdiction and that if there is prurient interest in private matters which can be published in other jurisdictions then in practice there is little an English court can do about it; the advent of the internet and 'social media' accentuates this situation, certainly, but it has not created it. One of the most famous relatively recent cases of an attempt to prohibit public knowledge of what the rich and powerful were doing happened in the 1930s when the King was having an affair with a divorced person, not a crime of course, but not sanctioned by the Church of which the King was the titular head; the matter was successfully kept out of the British media for some time, but even then the fact that it was widely-published elsewhere (in the US and various European countries as I understand it - all this happened long before I was born) meant that it could not remain secret from the British people forever. Whether the King having an affair with a divorced woman would have materially affected his duties as King is open to debate, as distinct from his role as titular head of the Church of England. Of course my view is that as a secular country, even one with an 'established' church, this should be irrelevant, but many other people think differently - so quite apart from the impracticality of trying to maintain secrecy within Britain, it was obviously a matter which (like it or not) was of national importance, so attempting to keep it secret was quite wrong.

I expect the law will have to be 'adapted' to suit the world we now live in, with its ease and speed of communication, not to mention its cross-border nature. In the recent troubles in Iran and Libya, attempts by the local authorities there to restrict information to their own populations was attempted for a while, but quickly abandoned at least partially, just as attempts by the government of the former East Germany to keep its people insulated from outside viewpoints were never very effective; the same could be said of China today. The only country I can think of where a repressive regime has some success in restricting information is North Korea, but that is achieved only by extreme repression, something that is unlikely ever to be possible, or at least not for very long, in even nominal democracies.

UPDATE (Monday 23MAY2011 18.17) LibDem MP John Hemming named in Parliament this afternoon the footballer referred to above as Ryan Giggs; he was chastised for doing so by Speaker John Bercow, no doubt strictly correect according to the law, but frankly his objections would have been pointless last week and even more so now, whatever the "law" says as this particular law is no longer fit for purpose. As someone with no interest whatsoever in football I don't have a mental image of what he looks like. but a quick Google image search reveal this. As a corollary, a short while ago I watched an interview with Alistair Campbell, former spin doctor for Tony Blair, and a former tabloid journalist, not someone with whom I agree very often (or almost ever, really) say something which I thought was pretty sensible - basically that the journalistic attempts to get the name of Ryan Giggs into the public domain in this context are just so much hypocritical hogwash (my words), because there is no public interest in naming him, but it does help to sell newspapers, pretty much one of the points I was making in my own article. The fact that Ryan Giggs was at best naïve and at worst plain silly to pay a law firm good money to try and keep his name out of the public prints, given the salacious nature of his actions and the appetite of the [mainly tabloid-reading] public for 'juicy' stories about well-known people so that UK (in this case English) law can be flouted easily by way of the internet, not to mention print publications in other legal jurisdictions, is just becoming ever more clear.

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