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GAGGED

by the rich and powerful

A report on injunctions. By Sam Moir


Fulwood Mail, Monday, June 6, 2011

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Judges have created their own law by Sam Moir

‘Eady has retreated to the confines of his courtroom - preferring to speak only through his rulings’

AS YOU walk through the wroughtiron gates of the Royal Courts of Justice and up the wide stone steps, the pointed arches elevate high above your head.

Past the oak doors and through the modern metal detectors, you are then into the main hall. The traditional purveyors of the English law, many of whom who have won injunctions for their clients in recent weeks, walk past dressed in the 18th century barrister uniform of black gown, horsehair wig, and wing collars worn with bands. The courtrooms are furnished in oak, with red or blue leather-lined seats and desks. Justice Eady, dressed in a judge’s traditional clothes, wig, red main robe sits high up at the front, under the Royal Crest. Before David Eady was appointed a High Court Judge in 1997, he specialised in media law. His services were highly in demand. The Daily Telegraph described him as “a leading courtroom defender of red-top journalism, much in demand as a barrister who could be relied on to uphold the freedom of the tabloids to expose the private lives of public figures.” But that was about to change. In recent times, Eady has turned from poacher to gamekeeper. He was knighted and elevated to the High Court in 1997, the year New Labour came to power and with them came the Human Rights Act a year later. This is the closest England has been to a privacy law. The Act established two powerful, if contradictory rights. The right to private and family life under Article 8 and the right to

privacy and Freedom of Expression under Article 10. This is the right that allows the press to publish. Eady is known for having judged many high-profile libel cases, in favour of Article 8. He “has delivered rulings that have bolstered privacy laws and encouraged libel tourism,” wrote the Times. Critics argue he and other judges such as Justice Tugendhat are developing a privacy law through their rulings. This created law has been developed by judges through cases involving the supermodel Naomi Campbell and the former motorsport boss, Max Mosley. It established that if a person has a reasonable expectation of privacy in a particular activity, the press can only publish the story of them, if there is a genuine public interest in doing so. But Ryan Giggs’ alleged infidelity led a number of wider issues being publicly examined. From freedom of the press to free speech, online censorship, the effect of European treaties on the UK legal systems and fundamental constitutional issues regarding parliamentary privilege, one footballer’s private life became the focal point for journalism’s biggest issue in recent years.

Centuries old The foundations of this issue date back to centuries ago. In English common law, “free speech” was defined as no “prior restraint”. People were free to say whatever they wanted, but they could then be prosecuted for sedition or seditious libel. Injunctions are nothing new. But serious issues were raised when an or-

der was granted in October 2009 against the Guardian by oil trader Trafigura. The order covered a parliamentary question. This led to a debate over where the line should be drawn between freedom of expression and privacy as the injunction had stopped the newspaper identifying the MP and details of the question. It was subsequently lifted. With the superinjunction, the media are forbidden from revealing even the fact that an injunction has been granted.

Internet’s impact Recently, Eady and his colleagues have come up against their toughest case yet: the Internet. Last month one user on social networking site Twitter posted the alleged details of several of injunctions that had been mentioned in the newspapers. Newspapers continued to push injunctions up the news agenda with the Daily Mail giving the Twitter story a front page. In a written ruling, Eady refused to concede that privacy injunctions had “ceased to serve any useful purpose in the age of the internet”. Scottish newspaper the Sunday Herald decided it was time to speak out. Free from English jurisdiction, the newspaper published a photo of Ryan Giggs on its front page. His eyes were blanked out with the caption ‘CENSORED’. “It seems to us a ludicrous situation where we are supposed to keep from our readers the identity of someone who anybody can find out on the internet at the click of a mouse,” said the newspaper’s editor, Richard Walker. The next day, the politicians joined the crusade against the courts to fight against the

gagging culture. Member of Parliament, John Hemming, utilised parliamentary privilege to name Giggs as the footballer who sought the injunction for allegedly having an affair with Imogen Thomas. This was not the first time Hemming had invoked this privilege. He had done so in March to reveal exbanker Fred Goodwin’s superinjunction. Lord Stoneham would later use privilege to reveal further details of Goodwin’s order. Parliamentary privilege is a centuries old rule allowing politicians to speak freely within the scope of Parliamentary business without fear of civil or criminal proceedings. The press are allowed to report parliamentary debates in full. When Hemming revealed Giggs’ name in the House of Commons, only one story dominated the news agenda for the rest of that day. Then there was Lord Neuberger’s highly anticipated report on the issue. He recommended the media be given advanced notice of any superinjunction to be passed. The report also found the judiciary had not created a privacy law but that superinjunctions were being used too frequently and should be more time-limited. This was not enough and the government have been urged to intervene rather than inert on the issue. Conservative MP John Whittingdale will soon head a committee formed by Prime Minister David Cameron looking into privacy issues. For now, Eady has retreated to the confines of his courtroom. He prefers to speak only through his rulings. “He thinks it best he keeps a low profile,” says his clerk. But with no injunction applications in 24 days now, it seems Eady is not the only person keeping a low profile.

‘Superinjunctions would MP: ‘Judges allow violate First Amendment’ privacy law creep’

I’ve forgotten my injunction

WITH BRITAIN engulfed in a free speech crisis with the increasing use of superinjunctions, across the Atlantic, Americans are bemused. In the UK, famous people are able to stop the publication of details of their private lives. In America, they cannot.

This is because it goes against one of the country’s founding principles, free speech. “One of the most important underlying qualities of the First Amendment is that it protects all speech, not just the speech we like,” says John Schwartz, Legal Correspondent for the New York Times. “The American system has set the meter at a point that allows quite a bit of obnoxiousness, and worse, to enter public discourse. “But to do less is to risk impeding the free flow of information too much and too readily.”

Public’s right to now With the UK media arguing injunctions also damage newspaper’s business models, Schwartz stressed the importance of the First Amendment protecting a journalist’s ways to make a living. “American journalists earn their bread and butter through the First Amendment, so we tend to want it strong. “The First Amendment is about protect-

ing the public’s right to know, so that an informed populace can make the kinds of decisions at the polls that enable democracy to work properly. “Ordinary American people would no doubt say that superinjunctions would violate the First Amendment, and would be found unconstitutional here. “Though court gag orders are not unheard of in the states,” he says. In America, injunctions are only likely to succeed in matters of national security. In 1971, the Nixon administration successfully stopped the New York Times from publishing the Pentagon Papers. These were classified documents that included damaging revelations about US policy in the Vietnam War. But two weeks later, by which time more newspapers were also running with the story, the US Supreme Court ruled the government did not have a strong enough case to merit prior restraint. American publishing company, Forbes, recently published the name of the footballer alleged to have had an affair with Imogen Thomas on its website. They can do this without fear of punishment because America is not subject to the superinjunction. American journalists also believe the footballer’s attempts to sue Twitter will inevitably fail. “Here in the US, we have a law, Section

230 of the Communications Decency Act, that protects sites from liability from things said by their users. If a reader decides to defame someone in the Forbes comments, the reader could get in trouble for defamation but Forbes wouldn’t,” says Forbes blogger, Kashmir Hill. “The same thing applies to Twitter. Scoring a goal for the free flow of conversation on the Internet.”

UK doomed to privacy law Hill was the first journalist in the United States to reveal Giggs as the footballer alleged to have had an affair with Imogen Thomas. “It was hard to put it into context for US readers. I made a comparison to Tiger Woods to try to explain it. “He might have avoided his public flameout if injunctions existed here, and he could have kept the press from reporting on his affairs.” Hill believes a privacy law in England is only a matter of time. “They seem doomed to me. I realise that privacy rights tend to be weighted more heavily than free speech rights in the UK in comparison to the US. “But this latest brohaha would seem to illustrate that injunctions just aren’t feasible in the world we live in today, when laws do not extend across media and borders.”

Hemming: Revealing all injunctions an option

THE MEMBER of Parliament who revealed Fred Goodwin and Ryan Giggs had taken out injunctions may out more rich and famous celebrities.

John Hemming was praised for using parliamentary privilege in March to name the ex-banker as the man who went to court to stop the media referring to his former role. “He was personally responsible for a substantial part of RBS’ problems which have caused problems for many people and the country as a whole,” said Hemming. “People should be aware that he is trying to keep matters that are true out of the public domain.” Last month he named Manchester United star, Ryan Giggs as the footballer behind the injunction linked to an alleged affair with reality TV star Imogen Thomas. Having campaigned on the issue, he said it was ‘impractical to imprison the 75,000 Twitter followers’ who have already broke the injunction and named the Manchester United player. Hemming, MP for Birmingham, Yardley, believes judges are slowing allowing a privacy law to creep in and said statute was needed to rectify the situation. He also claimed similar injunctions

were being upheld regardless of them being in the public interest. “I think the actor’s case [referring to an injunction two actors have taken out] is a good one. The company that sacked the female actor has not had to account for its behaviour. That is a clear public interest issue. “You can often create an argument that someone will suffer from publicity, however, a society that is built on lies and dishonesty does not have a strong foundation,” he said. “Contemplating is too strong a word. It is, of course, an option,” when asked if he is contemplating revealing more injunctions in similar fashion. Parliamentary privilege dates back to the English Civil War, when Parliament was fighting for independence from the monarchy. It was not until 1689, when the Bill of Rights established the rights of Parliament that it became enshrined in law. In May, Lord Stoneham, speaking on behalf of Lord Oakeshott, again used privilege to reveal Goodwin, a married man, was allegedly in a relationship with a senior colleague. Mr Justice Tugendhat varied the injunction to allow reporting of Sir Fred’s name, but not details of the alleged relationship or the name of the colleague said to be involved.


Fulwood Mail, Monday, June 6, 2011

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The poster boy for the battle against

FREE SPEECH

‘Everyone from the Prime Minister to the Spanish cleaning lady in my office knew the identity of Ryan Giggs and it was being sung on the terraces of just about every Premier League match last weekend before Hemming broke it’ by Sam Moir

‘The suggestion you buy a newspaper because there’s a story about Ryan Giggs and a former Miss Wales and Big Brother contestant is just nonsense’

LAWYER Mark Stephens is enjoying a moment’s respite in his office overlooking Park Square Gardens in London’s West End.

The last few weeks have been busy for him. Exceptionally busy. Dressed in purple and black pin striped blazer with an orange silk flowered tie, Stephens has been a striking and vocal critic of the current gagging culture and reckons the courts are making one law for the rich and one for the poor. “Even somebody of modest wealth can’t afford these injunctions. They are going to cost you £75,000 to £100,000 and most people don’t have that kind of money therefore they set to be for the rich and powerful,” he says. “You can’t get legal aid for them,”he says, shuffling through his papers attemtping to find his BlackBerry. “You have to be rich and to pay £75,000 out of taxed income and not really feel it, you’re going to be have to be a multimillionaire to do it, certainly a millionaire,” he says. Stephens has just returned from venting his anger on BBC-TV. Barristers charging high fees - counsel such as Hugh Tomlinson - are as much to blame as their clients. In Giggs’ case, solicitor Keith Schilling is rumoured to have charged as much as £250,000 for his service. “Lawyers are making millions, milking these millionaires taking these kind of cases for them. “I think lawyers who are advising them are slightly conflicted because these people are better off taking it on the chin and getting a PR man to drown out the bad voices. “Ryan Giggs has contrived to make Wayne Rooney look positively intelligent,” he says. Giggs’ alleged infidelity is not the first case of its kind. And it continues the trend of Premier League footballers seeking gagging orders to prevent them from being exposed by national newspapers. Stephens believes the injunction itself increased attention on Giggs. Before being outed, his legal team continued to pursue legal action. Subsequently, there was an increase in the

number of online references to him. This is the Streisand effect - attempts to hide or remove a piece of information having the unintended consequence of publicising the information even more. “Footballers have always been sexually incontinent and continue to be so,” Stephens says. He pauses.

Poster boy “But what has changed is people’s attitudes and because of these privacy injunctions, it has become the battleground for free speech on the internet. “The lawyers for Ryan Giggs turned him into the poster boy. Through the use of social networking site, Twitter, Giggs’ injunction had become, as one newspaper claimed, ‘Britain’s best kept secret’. “Everyone from the Prime Minister to the Spanish cleaning lady in my office knew the identity of Ryan Giggs and as a result of that, it was being sung on the terraces of just about every Premier League match last weekend before Hemming broke it. Hemming later said the amount of people who could access Giggs’ name online meant the internet makes injunctions pointless. Stephens agrees. “Injunctions don’t work in an international information age. The courts of England and Wales, as was demonstrated by Ryan Giggs, don’t go to Scotland. “The Sunday Herald wasn’t the only organisation that breached the injunction on that day, newspapers in Mauritius and Spain did, too. “You had three media organisations across the planet breaking the injunction simultaneously. It shows there’s a law that is weak and ineffectual against global information,” says Stephens. With John Hemming using parliamentary privilege to reveal both Giggs and ex-banker Sir Fred Goodwin had taken out injunctions, Stephens believes both of these cases, particularly Giggs’ were exceptional incidents. “It’s a lesson in constitutional law for most people. It shows that ultimately parliament is in charge.

“But a parliamentarian hasn’t had the benefit of legal training and hasn’t had the benefit of legal argument in relation to the matters that are private. “Even though he didn’t reveal the substance of the private information, he dealt with it as a matter of principle. “One has to be cautious and exercise such privileges extremely cautiously. “You have to look at the history of exercising these powers and this is an exceptional incident which is not going to be the precedence,” he said. With Conservative MP John Whittingdale to head a committee formed by Prime Minister David Cameron looking into privacy issues, this may be the first step towards a privacy law. Stephens is critical of the current way the system works where there is no law for Judges to rule on. “The judges have invented a privacy law. “The law is currently too whimsical and unpredictable to identify where and when boundaries are being drawn by the judges particularly since all cases are in secret and the public judgement is indecipherable from a precedent point of view,” he says. Reputed media lawyer, Charlotte Harris recently said newspapers’ main interest in injunctions is the potential loss of income they could face from these gagging orders being granted. But Stephens says it is less to do with sensationalist stories. They are not a deciding factor for the British public when buying newspapers. “People buy newspapers when these stories are in them or not. “The suggestion that you buy a newspaper because there’s a story about Ryan Giggs and a former Miss Wales and Big Brother contestant is just nonsense. “We tend to buy news that reflects our own opinions, prejudices, biases

and the editorial mind of the newspaper,” he says. Stephens has a copy of the Independent today. His comments about the latest Twitter user to leak injunctions on the social networking site have been published in the newspaper. “The argument that there’s some commercial rationale to this is nonsense.“Newspapers are about news and that’s why we buy them,” says Stephens. His BlackBerry rings. Stephens says he needs to take the call. It would appear he has more to say on the gagging culture we currently live in.


Fulwood Mail, Monday, June 6, 2011

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‘Injunctions are fatal for investigative journalism,’ says Fake Sheikh

The Fake Sheikh’s biggest stories

by Sam Moir

‘It’s only a matter of time before criminal wrongdoing falls into the same bracket if action is not taken, I can envisage wealthy paedophiles running to the courts to seek injunctions’

IN HIS only television interview in 2008, the News of the World’s Investigations Editor, Mazher Mahmood, claimed a privacy law is creeping into Britain and also said investigative journalism is slowly being strangled. Three years later, the undercover reporter, famous for his Fake Sheikh disguise now feels the emergence of superinjunctions could further damage this style of journalism. “It is a farcical situation, with a superinjunction meaning that we can’t even say there is any injunction in place,” he says. “With the increasing numbers of injunctions coming out of the conveyor belt of the High Court, this situation is fatal for investigative journalism. “The fact that you are in a position of power and have wealth should not mean that your moral wrongdoing can be covered up. “In the current climate, anyone with sufficient funding can be a serial adulterer who lies and deceives the public, but get a licence from the courts to carry on doing so without ever being exposed,” he says. Earlier this year, David Cameron, waded into the debate on the increasing use of injunctions by claiming he felt ‘uneasy’ over judges’ use of their powers. The Prime Minister’s comments have been met with approval from Mahmood. “I’m encouraged by the recent remarks made by David Cameron who recognises the appalling situation and the fact that it should be parliament that decides on any privacy law, not the judiciary. “There is a massive outcry from all quarters and I’m confident that the current crisis will be resolved in favour of a free and ungagged press,” he says.

Criminal Circles Mahmood is fearful of is the current nature of injunctions transgressing into criminal circles. “At present the injunctions seem to be confined largely to moral wrongdoing. “But the way things are going, it’s only a matter of time before criminal wrongdoing falls into the same bracket. “If action is not taken, I can envisage wealthy paedophiles running to the courts to seek injunctions.” While the rich and famous have obtained nearly 80 gagging orders in British courts in the last six years to block the publication of intimate details about their private

‘Investigative journalism is not something you undertake for the pay - you get huge satisfaction from your work and the small change that you make to society’ lives, the public does not know just how far these laws have expanded to and who they involve beyond celebrities. But Mahmood is surprisingly optimistic about the future. “The British media has a long and proud history of investigative journalism, and we have the best exponents of the art in the world. The British public and authorities both acknowledge the vital role played by investigative journalists and there is no way that the current gagging culture will be allowed to flourish. “The media has diversified too, with the emergence of the internet and bloggers and tweeters who cannot be policed by the courts. No sooner is an injunction slapped on a newspaper, the names of the individuals involved are plastered all over the net. Investigative journalism will simply never be allowed to fade away,” he says. With injunctions becoming more popular, lawyers argue newspapers are more concerned about their business model rather than upholding a high quality of journalism. “The pre-requisite for launching any investigation at the News of the World (and under the PCC guidelines) is that it has to be in the public interest. We do not pluck targets out of the air or go on fishing expeditions just to get some gossip that might be interesting for our readers. “Investigations, which can often be very costly to execute, are always based on reliable information and have to satisfy our strict criteria,” he says. The actor Hugh Grant recently claimed an increase in such laws would cause newspapers to die because they cannot report the sensationalist stories they currently live on. “Newspapers are a business, and our aim is to increase revenue through sales and advertising. Readers of the News of the World expect a mix of news agenda setting stories, sports exclusives and entertainment scoops. “Investigations have historically been the backbone of the News of the World and are a vital ingredient of the paper. “However, our run-of-the mill investigations are not necessarily stories that in themselves boost sales and don’t usually

make the front page. “Exposes of paedophiles, people traffickers, arms dealers and other fraudsters, though important stories, don’t add on significant sales figures. The celebrity and Royal exposes that do make the front page and boost sales are a small fraction of the investigations that we carry out,” he says. But the nature of his success comes at a heavy price. Mahmood works secretively, rarely going into the News International offices. He demanded a clause in his contract stating that his photograph will never be published in the newspaper. He is often accompanied by a bodyguard, said to be his second cousin. In addition to his £120,000-a-year salary, the newspaper also provides two bodyguards for him. “Investigative journalism is not something that you undertake just for the pay. “You have to be totally committed and get huge satisfaction from your work and the small change that you make to society. “Threats are an integral part of the job, and if I stopped getting threats and legal letters, I would feel that I wasn’t doing my job properly,” he says.

Devout critic Then there are the critics. George Galloway is one of his most devout. Galloway turned the tables on Mahmood by publishing photos of him on the internet after a court battle with the News of the World. The pictures went on Galloway’s website after a meeting in which Galloway, a frequent critic of Israel, said that Mahmood tried to, unsuccessfully, goad him into making anti-Semitic remarks and accepting improper political financing. “His actions [publishing the photographs] increased the potential threat to my life and I had to introduce increased security measures as a result.” Roy Greenslade is another. He regularly writes comment pieces for the Guardian criticising Mahmood. Mahmood now finds himself the story as much as his own stories.

“I am a journalist and my role is to write stories rather than to be the subject of stories. Working undercover, dealing with villains on a daily basis, it is essential that my identity and modus operandi is not revealed. “Nobody knows that better than fellow journalists. So therefore it is disappointing when rival newspapers and one maverick MP chose to publish my photograph and add to the dangers that I face.” With the News of the World currently embroiled in the phone hacking scandal, the newspaper is never far from the spotlight. But Mahmood says the broadsheets act in a hypocritical manner regarding tabloid stories as they then go ahead and cover the story too. “It is a well documented fact that our broadsheet critics attack us yet steal our stories. There are endless examples of tabloid exposes that have been severely criticised by the broadsheets while running the full content including pictures of our stories. There is a great deal of hypocrisy involved.”

Superman Dubbed ‘Britain’s most notorious undercover reporter’, Mahmood’s career has seen him notch up more than 250 successful criminal prosecutions including alleged arms dealers, drug dealers, numerous immigration racketeers and several paedophiles. He has won Reporter of the Year twice and several other major awards. “That in itself is testament to the fact that investigative journalism is both held in high regard and appreciated. “But for me, I’ve always said that it’s not just the high profile stings that provide the most satisfaction. While it is great to bring down the likes of the Duchess of York, people who think they are untouchable, I’m most proud of putting paedophiles behind bars.” “The stories that make a fundamental change to people’s lives, often preserving their lives are the ones that really count. “It’s nice to know that there is someone alive today who would not be, were it not for the intervention of the News of the World,” he says. “Exposing a couple who were running a council approved home in Hull and routinely abusing children was another proud moment. One of the very young girls that was abused by the couple later wrote to me to thank me, and described me as “Superman”.

A report on injunctions by Sam Moir  

My final journalism assignment on the inunction controversy in May 2011.

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