“I did not come into journalism to go around gagging journalists”, declared the BBC’s Andrew Marr last month, as he admitted finally that gagging journalists was exactly what he had done.
Marr had been granted a “super-injunction” by the courts back in 2008 to prevent any details of an extramarital affair he’d had being made public. Now, with Private Eye magazine launching a legal challenge to that ruling, he had decided to come clean.
Injunctions are used (in English law) to prevent certain information from being reported, and not only in England. Super-injunctions go one step further and stop the media from even mentioning that an injunction exists. They are an almost complete gag.
While it is impossible to know exactly how many super-injunctions have actually been granted, there are believed to be around 30 currently in effect. Most of these are thought to relate to cases like Marr’s: infidelities by well-known people, covered up to protect reputations and business interests.
These cases raise the interesting twin questions: what do we, the public, have a right to know, and what can rightfully be concealed from us? In other words, where does the freedom of the press (and of speech) end and the right to privacy begin?
There is an enormous appetite in this country for even the most minor and apparently inconsequential detail of the lives of celebrities and other public figures. Newsagents’ shelves are stacked with magazines comprised almost entirely of voyeuristic photographs: TV presenters in bikinis on foreign beaches; pop stars going to the shops in tracksuits and baseball caps; actresses on the red carpet, berated either for being too skinny or too fat. Stories of infidelity and other misdemeanours are repeated ad nauseum in these publications, as they are in the tabloids, with tasteless relish.
I am not glad that these magazines exist, and certainly not that huge numbers of people wish to spend their time reading them. But the question of what is and is not acceptable to print is a very tricky one indeed.
If a footballer has an affair with a model, for example, not only do I not care in the slightest, but I am also unconvinced that I have any particular right to know about it, even if I did care. The sexual antics of the rich and famous are not really any of my business.
But on the other hand, the idea of people using their wealth to pay for these antics to be concealed by the courts makes me uncomfortable. The increasing use of super-injunctions suggests privacy is becoming something that can be paid for – a privilege rather than a right – and that should not be the case.
More troubling still is the fact that super-injunctions have been used not just by unfaithful male celebrities, but also by companies trying to prevent their failings from becoming known.
Most famous of these is Trafigura, the oil-trading firm which, in 2009, tried to prevent The Guardian from reporting on a toxic dumping incident in Ivory Coast. The company even attempted to stop a question that was asked in parliament about the matter from being repeated by the paper, a move that very quickly backfired. That injunction was subsequently dropped, but at least one other super-injunction is currently in place to silence allegations about water-poisoning on board ships.
Such cases are certainly the minority, but they highlight the potential dangers of the situation as it stands.
There is a great deal of ambiguity today about what constitutes privacy and what is unnecessary secrecy. The recent, high-profile cases do mean though that a sensible debate of the issues is developing, and this can only be a good thing.
Andrew Marr himself, discussing his own super-injunction, admitted that he was both “embarrassed” and “uneasy” about the measure, and felt that their use now was “running out of control”. But he argued too that, “I also had my own family to think about, and I believed this story was nobody else’s business. I still believe there was, under those circumstances, no legitimate public interest in it”.
Finding a middle ground between privacy and the public interest is a difficult task, but if it is to have any legitimacy, the debate must involve the general public and politicians. It must not be left to judges alone to decide what we can and cannot know.