The smoke is beginning to clear over the “super-injunctions” battlefield. The mainstream media has taken part in – some would say orchestrated – a successful campaign of civil disobedience. Multiple and blatant breaches of the law appear to have gone unpunished. The forces of the evil gaggers have been vanquished with the indispensable assistance of Twitter and John Hemming MP. Twitter usage figures have soared and, presumably, at least a few readers have been buying papers to find out the latest twist and turn of “gag-gate”.
The casualties of the campaign are obvious. There is the intrusion and harassment into the lives of individuals who the courts have held have proper grounds for retaining their privacy. The public seems to be split on whether this is a good thing or not. More importantly, there is the question as to what this means for the future relationship between the press, parliament and the judiciary. It might be thought that public disobedience would lead judges to refuse injunctions – although Monday’s judgments in the CTB case suggest otherwise – three applications to discharge the injunction failed, the last one after Mr Hemming’s parliamentary question. The first and the third judgments are available online. Then there is the potential impact on privacy law. If a law is ignored, it can either be repealed or strengthened. In the land of mob rule we are only ever one outrageous privacy intrusion incident away from a swift about turn and a public outcry in favour of proper protection.
There have been a number of media attempts to analyse the overall position. Most recently, there was a piece in the “Independent” claiming that, over the past 5 years, “333 gagging orders protecting the identities of celebrities, children and private individuals have been granted in the past five years“. However, 264 of these orders related to children and vulnerable adults and only 69 were injunctions which barred the publication of the names of high-profile individuals – that is, 14 a year or just slightly more than one a month. The article includes a discussion of the nature of the cases in which “gagging orders” have been granted – this is, at first sight, surprising as the supporting papers are usually provided to the press “for the purposes of the action” (not for the purposes of writing newspaper articles).
The press has, in general, taken a simplistic unanalysed approach to all this: privacy injunctions bad, unrestricted reporting of tittle tattle good. Polly Toynbee’s piece in yesterday’s Guardian is an interesting exception. This is entitlted “Superinjunctions: How the right wing media makes the personal political“, and concludes that
The phoney moralising and loathing of rich stars comes from newsrooms where editors like Paul Dacre are paid millions, and whose politics decry high taxes or curbs on top earnings. Spreading jealousy taps into the social dysfunction of extreme pay inequality. Pressing everyone’s nose up against impossible lifestyles, editors like to stir envy, while diverting political impulse to personal revenge”.
Taking a step back, the most interesting aspect of the whole affair is the way in which the press has dealt with its consistent defeats on the privacy issue. It failed in Parliament when the Human Rights Act was debated, failed before the courts in this country and failed to persuade the Select Committee on Media and Sport that the law should be changed. Confronted by these failures the press has decided that it can use the internet and social media to evade the law. Lord Wakeham’s recent revival of his proposal to give the press legal immunity from the Human Rights Act reminds us of the ideal to which some sections of the press aspire: it wants to be above the law and beyond the reach of those irritating judges.