SEX, LIES...BREAKFAST

12/03/2010

Look! What’s that (falling from) the sky?

 

A bird?

 

A plane?

 

It’s…it’s a superinjunction.

 

Yes ladies and gentlemen, the only bit of legalese worthy of its own preternatural prefix is here; and, depending on what side of the fence you sit, it might just save the day.

 

Speaking of alienating jargon, the Felicity Greens among us need to know: injunction, Trafigura, Binyam Mohammed, Alphabet Soup, what does it all mean?

 

The notorious Nigel Tait puts it succinctly – an injunction is lodged in court to stop a potentially libelous or character debasing story from seeing the press’ proverbial light of day; the objective of a superinjunction, on the other hand, is to bar publication of any story about the very existence of an injunction.  The objective being, if the Guardian writes about John Terry allegedly gagging some unknown story, people will see smoke and start to wonder – what has he done? 

 

But is it mighty?  The verdict from last night’s Media Society and Stephenson Harwood debate: Roger Graef, David Leigh, Mark Stephens and the People vs. Carter Ruck’s Nigel Tait panel is that the superinjunction is a mighty powerful tool for the mighty powerful.  As David Leigh puts it, “I am for the rule of law, not for the rule of lawyers (who defend those wielding the power of money)”.  Roger Graef adds “the superinjunction is a sort of nuclear weapon in what really is a guerilla war”.

 

Tait counters that the issues of privacy and public interest are what’s at stake.  He’s not convinced that what happens on a celebrity’s death or marital bed should be of any interest to the public.  Nor does he think stories emerging from people with insider knowledge, like current Labour MP and former Guardian editor Paul Farrely, should be treated as proper journalism.  For more on the Trafigura affair, see Robert Booth’s partisan take.   

 

But if public interest is gauged by how many copies of Now are bought, then intriguing yarns such as these are no doubt of great interest to the reading public. 

 

“It is traditional for the British public to read about Sarkozy’s sexual incontinence with our bacon and eggs” says Stephens.

 

In the end, we love gossip and still harbour just enough credulity to even be able to ask the question, could an oil company really be involved in such dirty games?

 

While the superinjuction protects the reputation of the powerful, journalists are just as worried about their own, sometimes delusional, self-image as protector of the meek.

 

Stephens again, “I am for trying to stop Nigel Tait and his ilk from censoring journalists.  He will, at an 800 pound an hour rate, stop the truth.”

 

Then Graef, “the cost of defending this stuff stops good journalism.”

 

One could ask if superinjunctions and their attendant threat to free speech are really the base problem.  There are many instances –those involving national and financial security – when a simple admonishment is enough.  Take this recent New York Times quote regarding the capture of Taliban Military Chief Mullah Abdul Ghani Baradar:

 

“The New York Times learned of the operation on Thursday, but delayed reporting it at the request of White House officials, who contended that making it public would end a hugely successful intelligence-gathering effort. The officials said that the group’s leaders had been unaware of Mullah Baradar’s capture and that if it became public they might cover their tracks and become more careful about communicating with each other."

 

And what of privacy? Tait intones.  Doesn’t everyone have a right to private enjoyment?

 

David Leigh, sounding quite the Jacobin – a club which was coincidentally filled with both lawyers and journalists – argues that the freedom of privacy card is both a front for the sinister deeds of the truly powerful and an affront to the very institution of free speech.

 

Mark Stephens fears a precedent being set.  Superinjunctions in the hands of corporate citizens is bad enough, but in the hands of government…did somebody say totalitarianism?

 

Luckily for those of us dwelling in the relative obscurity of crushing reality, there is hope.  Most of our private affairs are simply of no public interest.

Ryan Mahan