The game is up for super-injunctions

Raymond Snoddy: “The really good news about super-injunctions is that in the age of the internet they may become increasingly impossible to enforce whatever judges decide…”

Andrew Marr is to be congratulated for what some would call his belated admission that he took out a super-injunction some years ago to prevent the press writing about an affair with a colleague.

To add extra piquancy Marr’s confession yesterday (Tuesday) came in the Daily Mail, one of the papers that has been leading the charge against the apparent outbreak of super-injunctions taken out in recent weeks by errant footballers and actors.

Marr is right to feel embarrassed that as a journalist and former national newspaper editor he crossed over to the other side to try to protect his privacy.

According to Private Eye editor Ian Hislop Marr’s behaviour was hypocritical.

Rather endearingly Marr admits: “I did not come into journalism to go around gagging journalists” even though that of course is exactly what he did.

However, leaving aside the journalism element for a moment, his reasons for doing so will strike a chord with many people. He had his family to think about, believed that the story was nobody else’s business and that above all time away from the public gaze was needed if a family rift was ever going to be healed.

In a very ordinary, human way which did not involve prostitutes or three-in-a-bed orgies the case encapsulates an unresolved policy dilemma – where should the limits to privacy be set and when should the public’s right to know be curbed.

In legislative terms the dilemma is spelt out with alarming clarity in the European Convention on Human Rights which espouses the admirable right to know with the equally admirable right to family life and privacy. The two concepts are difficult if not impossible to reconcile and into the gap between them has poured judges of the like of Mr Justice Eady who, wilfully or not, have embarked on the creation of a new law of privacy in England where none existed before.

Even Prime Minister Cameron seems confused on the issue when he said this week that Parliament not judges should decide on the balance between press freedom and privacy.

Yet it was Parliament that created this situation by passing legislation bringing the European convention into UK law – without doing anything about the inconsistencies it contained.

There are perfectly legitimate reasons for super-injunctions, where the very existence of the injunction cannot be reported. They include cases of blackmail, for instance, or famous people not wanting to have their health records leaked into the public domain.

But should the sleazy behaviour of footballers or entertainers have the same level of protection for ever? Almost certainly not.

They get paid vast sums of money for voluntarily entering the public domain and often deliberately court and exploit publicity to enhance their careers. Whether they like it or not they take on the mantle of role models for the young and should be expected to behave with a minimum of decency and decorum.

It is certainly not obvious why they should be allowed to have it both ways and enjoy only the good publicity.
The really good news about super-injunctions is that in the age of the internet they may become increasingly impossible to enforce whatever judges decide.

Information can be spread from other jurisdictions at the speed of light and even in the UK the necessary tools to identify the miscreants often exist. It takes less than two minutes on Google to find out who the mystery, married actor in the Wayne Rooney prostitute case is. The jigsaw clues are there. The part of the UK the famous actor comes from and the films he has most been associated with.

Bingo and a famous name pops up. A child could work it out – particularly a child. His wife will have probably long since checked it out.

There is the additional problem that the citizens of the internet might jump to the wrong conclusions and that the wrong actor is traduced.

Newspapers can easily run a large picture of the said actor with a completely inconsequential caption. Those schooled in reading between the lines will work it out.

With footballers there is an obvious uncontainable outlet for freedom of expression.

Their names and misdeeds can be chanted from the terraces on live television and not even Carter Ruck could do anything about that.

We will then get into a position, as happened with Andrew Marr long ago, that anyone who was the slightest bit interested knew about his behaviour through a mixture of media gossip and the internet. The problem though with the internet is it is so amorphous.

There is nothing quite like the focussed impact of a splash in the News of the World over Sunday morning breakfast.

But when a name is known universally on the internet even the most obtuse judge with his quill pen will realise that the game is up for super-injunctions.

If it is not so and the scandal of super-injunctions continues unabated then Cameron could be right and legislation might be required to clarify what sort of freedom society wants and in the internet age what sort of privacies are possible.

Some early help might come from the legal profession.

A committee set up by Lord Neuberger, the Master of the Rolls on the use of injunctions and super-injuctions to muzzle press freedom is due to report next month. It might be the starting point for a rational debate on the issue which could lead eventually to legislation to give greater weight to freedom of expression.

Andrew Marr may also have given a hint on possible reform when he appealed for the need for time to try to sort out a personal morass.

Perhaps it is worth considering a breathing space but with strict time limits on such injunctions and it would be also salutary if the name of those seeking them were known if not the purpose. It might make super-injunctions considerably less attractive in future.

As for the press this is not a good time to be riding about on its moral high horse.

Apart from the fact that more phone hacking prosecutions are likely, six newspapers are being sued for libel by Christopher Jefferies, the man arrested by police investigating the murder of Joanna Yeates. Jeffries suffered something akin to character assassination just because he appeared odd and eccentric before someone else was charged with the murder.

But the battle against the indiscriminate use of super-injunctions has still to be fought however difficult the terrain.