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Children to the fore as judges gag the world

Last week wasn’t good for press freedom.

In one case, the Court of Appeal refused to see any public interest in a story about the sacking of a woman after her office affair with a male colleague, who was, in contrast, allowed to keep his job in the entertainment industry.

The court also decided that the privacy rights of children could decisively tip the balance in favour of gagging press reports about a philandering parent.

In another case, Justice Eady granted what is believed to be the first injunction of general effect in a privacy case, ‘contra mundum‘ – that is, against the world.

Media outrage about such orders, which often enable wealthy men to prevent women publishing their sexual indiscretions, provoked strong political reaction.

Prime minister David Cameron said he was “uneasy” about the direction of judge-interpreted privacy law, and Lib Dem MP John Hemming called for urgent parliamentary scrutiny.

In the appeal court case, the court held that the dismissal of the female employee – said to be “understandably upset and angry” when sacked while her ex-lover was on holiday with his family over Christmas – was “not of public interest”.

Applying a narrow definition of the ‘public interest’, the court reckoned: “Here there is no political edge to the publication.  The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication.”

The court took its steer from European judges who had said in 2004, in the famous privacy case involving Princess Caroline of Monaco, that publication is only in the public interest if it contributes to a debate of general interest.

The narrowness of this un-nuanced view severely restricts what may be published by the British press.

It contrasts markedly with the broad approach once espoused by Lord Denning, albeit in a libel case, who said: “Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others, then that is a matter of public interest on which everyone is entitled to make fair comment.”

Adding children to the restrictive mix, the appeal court also decided that the fact that the male employee had two teenage children was an important factor in favour of granting the injunction.

The court said the children should be saved from “the ordeal of playground ridicule”, because the playground was “a cruel place where the bullies feed on personal discomfort and embarrassment”.

It referred to the United Nations Convention of the Rights of the Child 1989 and immigration case law to the effect that the best interests of children should always be “a primary consideration”.

It said: “It is clear that, when in a case such as this the court is deciding where the balance lies between the [freedom of expression] rights of the media and the [privacy] rights of those whose privacy would be invaded by publication, it should accord particular weight to the [privacy] rights of any children likely to be affected by the publication, if that would be likely to harm their interests.”

That is a paternalistic twist to privacy law which will worry those who believe the law in a democracy should err on the side of free speech

The twist became all the more alarming when, the following day, Justice Eady granted a ‘contra mundum‘ privacy injunction to stop a woman selling to a newspaper intimate photographs of a man to whom the judge said she owed a duty of confidence.

It is thought to be the first time such a draconian order has been made in a privacy case.  The judge said he was operating in “a new era” under the Human Rights Act which gave him power to impose the order against the world to give effect to the man’s privacy rights.

Such blanket, permanent injunctions had previously only been granted to protect the identity and whereabouts of notorious criminals whose right to life was at risk from publicity.

The rich and powerful may now routinely seek ‘contra mundum injunctions to control the press, and are increasingly likely to rely on concerns about their children in support of privacy orders about their own behaviour.

All in all, a bad week for press freedom.  And regrettably there seems little reason to believe the trend of social secrecy will be reversed at all by Lord Neuberger’s long-awaited review of privacy injunctions, which is due to be published after the royal wedding.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail nigel.hanson@footanstey.com or visit www.footanstey.com.
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