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To Name Or Not To Name... That Is The Question

To Name Or Not To Name... That Is The Question

At the beginning of this week (Monday 11 April), a Scottish newspaper published the names of the couple at the heart of the latest celebrity injunction scandal on its front page. In case you’ve somehow managed to miss it, an injunction* had been granted in England back in January which prevented The Sun from reporting details of a threesome one of the married pair allegedly had with another couple.

The story had already been published by a US newspaper last week but UK readers were not able to access the story online. The Scottish newspaper similarly took the decision not to upload their story to their online site as the content could be read in England. The couple’s names have also been plastered all over social media. This technically breaches the injunction and exposes to contempt proceedings those who have posted comments identifying the couple. The chances of this actually happening are slim unless the couple decide to pursue individuals. Although, the couple could adopt a similar tactic to that employed by Lord McAlpine back in 2012 by pursuing legal action against Twitter users with more than 500 followers. However, it does beg questions over whether there is any purpose of having privacy injunctions since they can be undermined on social media and in other countries which are not subject to the order.

It’s impossible not to draw parallels between the publication by the Scottish newspaper this week and the Sunday Herald’s famous revelation of Ryan Giggs’ infidelity. If we flash back to 2011 you will remember that the Sunday Herald ignored a super-injunction granted in England and published a photo of Giggs with a mask and the word ‘censored’ over his eyes. This was the Sunday Herald’s way of making a mockery of the situation that Giggs’ name was all over social media sites so everyone knew it was him and yet the traditional media outlets were unable to publish or broadcast his name because of the existence of the super-injunction. The sub-heading of the front cover read “Everyone knows that this is the footballer accused of using the courts to keep allegations of a sexual affair secret. But we weren’t supposed to tell you that …”

Precautions could have been taken in other countries. It would have been possible to obtain an injunction in the US, where the couple are well known, and an interdict in Scotland to guarantee protection here.

However, without any legislative provisions (and perhaps even with legislative provisions) it is verging on impossible to gag social media. So we end up with this absurd situation where newspapers are unable to print something that clearly everybody is talking about and is being widely reported on social media outlets.

And what about the injunction itself? Well the judges ruled that the right to privacy and family life for the applicant took priority over the press’ right to freedom of speech. It follows that the judges’ reading of UK domestic law in this case was that the press should be prohibited from making public what appears to be factually correct information as an individual’s concern for the wellbeing and privacy of his family is to be preferred to their right to free speech. The potential detrimental impact on the couple’s children was one of the key reasons for granting the injunction. With such importance placed on this point, it may dangerously give the impression that children can be used as pawns to strengthen the chances of a parent being successfully awarded an injunction.

The European Convention right to freedom of expression is given less importance than the right to privacy because the courts regard the material the media might want to publish as gossip and contributing nothing to a debate of general interest. But if the behaviour of celebrities is put beyond the boundaries of public debate then surely that limits the ability to discuss the way in which society is developing and how attitudes to honesty, integrity, morality and relationships are changing. Social media and the internet have fundamentally changed the rules of the game. When the courts interfere, the internet allows the public to circumvent the law’s restrictions leaving the public with a greater degree of freedom of expression compared to the media. That is a dangerous situation, which, taken to an extreme level could bring about the demise of mainstream media and do great damage to freedom of expression.

Today (Friday 15 April) The Sun are back in court seeking to have the injunction overturned. The hearing will take place in private, but the court’s decision will be given in open court.

So am I going to name the couple here and now before the outcome of today’s hearing? Although I am writing this at my desk in Scotland I’m not going to take that risk since the blog will go on the firm’s website and it might reach people in England via email or social media. So the injunction has served its broad purpose. But if you want to know you can call me. Let’s see what happens in court today and whether people in England can be let in on showbiz’s worst kept secret!

Fiona McAllister

*It is being widely and inaccurately reported that a super-injunction was granted. The “super” part of the injunction restrains publishing or informing others of the existence of the order and the proceedings, which is not the case here.