For once, the European Court of Human Rights handed down a sensible verdict and dismissed Max Mosley’s attempt to give VIPs even more power over the British media. Had he won, newspapers would have been forced to give subjects of stories about their private lives notice of publication, thus handing them the extra trump card of being able to apply for an interim injunction, and so prevent the potentially embarrassing or damaging stories from being published. Given the manner in which super-injunctions are being abused, the last thing we needed was for the rich and powerful to be given yet another helping hand to conceal any wrongdoing.
But fending off further attacks on press freedom is not enough. It’s time to take the offence: reform of both our libel and privacy laws is badly needed. We need to set a standard for reasonable expectation of privacy, and set benchmarks for when the public’s right or need to know trumps an individual’s right to privacy, instead of the current unfair and chaotic system of having every application for a super-injunction decided on its merits by individual judges. As we have seen this week, super-injunctions are counter-productive, as the details inevitably leak out, and simply feed a rumour mill in which innocent people – like Jemima Khan – end up entangled. And as for the celebrities who have sought and are seeking to cover-up extramarital affairs like alleged journalist Andrew Marr so hypocritically did, I have a simple piece of advice: if you don’t want it splashed all over the papers, don’t do it in the first place. “Right to privacy” does not and should not mean “right to enlist the law’s help in covering up bad behaviour”.
The more sinister side to the use of super-injunctions was readily apparent when they first came to the public’s attention: the law firm Carter Ruck attempted to prevent the media from reporting a question asked in Parliament revealing that their clients Trafigura had dumped large quantities of toxic waste in the Ivory Coast. For a few hours, the press in a supposedly free country were banned from reporting to the British people the proceedings in their own seat of government. This is exactly the kind of story – an oil company’s practices impacting the environment and possibly human health – that is crucial to the public interest, the kind of story which shows why freedom of the press is the bedrock of democracy, and the kind of story which tells us the dire consequences if this creeping encroachment on press freedom is allowed to continue.