Chris Mason wonders if super injunctions are worthwhile when their public existence merely adds fuel to the media fire.
Looking at trending topics on Twitter this week, the news caught my attention of a super-injunction barring Newsgroup Newspapers Limited from reporting on the private lives of two British ‘well known’ celebrities.
“Who are PJS and YMA?” were the cries from the keyboards.
Of course the acronyms are there to protect, as is the super injunction. Commonly known in the media world as ‘gagging orders’, super injunctions have been prevalent in the press over the last few years as many celebrities have used them to prevent details of their private lives from being leaked to the media.
If you’re reading this in America, you probably already know. A well known US magazine outed both PJS and YMA, however there is a ban on reporting about this case in the UK. If a broadcaster or any media outlet decides to publish the story in the UK then the editor and/or reporters involved could find themselves in contempt of Court.
Why is there a ban revealing who PJS and YMA are?
In PJS vs Newsgroup Newspapers (2016 EWCA Civ 100) a privacy injunction was refused in January to stop a Sunday newspaper from reporting on a British celebrity’s ‘extramarital activities’. However, a temporary block on publication was granted pending the hearing of an appeal.
That appeal happened late last month and Lord Justice Jackson said he and Lady Justice King had decided to allow the man’s appeal after balancing the man’s human right to respect for family life and the newspaper’s right to free expression.
Article 8 of the European Convention on Human Rights provides a right of respect for family and private life. As such, this protected the man and his appeal was allowed after balancing the man’s human right to respect for family life and the newspaper’s right to free expression.
The UK paper tried to argue under Article 10 that they had a right to publish on the principle of freedom of expression and argued that the couple had previously put ‘many details of their relationship’ into the public domain and as such publishing the story would add to an 'ongoing debate'. The couple fought back to say that they’d never courted the publicity.
That appeal was a fortnight ago, and the fuss seemed to die down, with very little chatter online about the identities of the celebrities in question.
Then in America, the names were released and it was in the public domain. Newspapers in the UK, frustrated at the use of super injunctions have not been able to report on the identities, but they’ve reported on the fact they can’t report, which of course draws more attention to the story as people seek answers to their identities. There’s now a snowball effect of interest online with people able to get this news on social media, forums, from American contacts and bypassing UK sites to seek out the identities. Of course this is not always the case with some super injunctions actually banning the reporting on the very existence of the injunction or the application for it.
In 2011 Ryan Giggs was outed by Liberal Democrat MP, John Hemming, when his own super injunction was in place. Hemming knew that parliamentary free-speech rules protected him from legal action and he made the decision to out Giggs. He’s been quoted in the press again this week, worried about the implications on the restriction of freedom of speech when dealing with ‘gagging orders’.
Obviously, there’s nothing to stop MPs from doing the same again, but by then it will be old news and a hollow victory for the UK press and broadcasters who will be given free reign to report on the story. Exactly what PJS and YMA didn’t want.
It’s already in the public domain and if you’re in America right now, you’re able to see the headlines and see clearly who it is. (If you’re interested).
I’m not in America, I’m in Liverpool. So for now I remain none the wiser. Until I log back into Twitter.
Chris Mason is an associate solicitor at Brown Turner Ross specialising in litigation. Contact Chris on 0800 195 7517 or email firstname.lastname@example.org