Gag reflex

A NATIONAL newspaper, which I won’t name, once ran a feature across two pages with a headline along the lines of: “Why all this fuss about Big Brother?”

I realise I’m leaving myself open to similar charges of moral hypocrisy for what I’m about to write, so I can only hope that you indulge me.

But I don’t much care if Premier League footballer X has had an affair with game show contestant Y or not. Cheating on your wife/husband/partner is an unpleasant thing to do, but it’s not illegal.

And unless the footballer in question is raking in huge sums of money by presenting a clean-cut image, or lecturing us all on the importance of family values, I don’t understand why we need to know about it. Indeed, amid all the recent hoo-hah about injunctions and possible legal action against Twitter over the naming of the footballer, not one person has attempted to claim the original story about the alleged affair is in the public interest.

It’s fascinating to read Justice Eady’s reasoning for upholding the injunction. (Clever people can read the full ruling here; doofuses like me are probably better off with the Guardian’s annotated version here.)

The thrust of his argument is that a Premier League footballer – yes, even a Premier League footballer – has a right to privacy under Article 8 of the European Convention on Human Rights. Justice Eady acknowledges also acknowledges the need to balance that against game show contestant Y’s right to freedom of expression under Article 10 of the same Convention.

And he has come to the conclusion that the story of the alleged affair does not measure up to the Press Complaints Commission code’s own public interest test – and that therefore the injunction should be upheld. Would publication prevent the public from being seriously misled? No. It would just be a diverting piece of gossip about a couple of celebrities. Interesting to the public, perhaps, but not in the public interest in the legal sense of the term.

It was the Sun who first broke the tale of the affair, naming the game show contestant but not the footballer, on April 14. I suspect if both people had been named at the time, the story would have blown over by now. The only reason it is still making headlines is because the footballer took out an injunction to stop himself being identified (well, that was a roaring success) at a time when injunctions, in all their forms, are big news.

So instead of seeing reports of the alleged affair restricted to a few of the tabloids, it’s also made all of the broadsheets and been brought up in the House of Commons. I don’t know how much the footballer is paying his lawyers, but I hope he’s kept the receipt.

Private Eye editor Ian Hislop got it right when he challenged the super-injunction taken out by Andrew Marr to prevent publication not only of a story about an extra-marital affair, but about the fact that the injunction even existed.

As Hislop pointed out, Marr was a hypocrite for gagging the press while working as part of it; and for writing an article stating that judges should not determine privacy law. “As a leading BBC interviewer, who is asking politicians about failures in judgement, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist,” Hislop said on the Today programme last month.

Hislop, though, added that he would be selective about challenging further injunctions as, in his words, “a lot of them are largely about slappers and footballers, and they make a difficult case for responsible journalism”.

You might not like the language Hislop used, but it’s hard to argue with the point. It’s wrong, in my view, to get outraged about Trafigura being granted an injunction to stifle reports of its toxic waste dumping if all you’re really interested in is the freedom to go public with the latest “kiss and tell” scandal – however many papers it sells, and however much people want to read all about it.

Freedom of speech is a key element of British society. Without it, we are a poorer nation. But with that freedom comes a responsibility to use it wisely.


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