Not-so-super injunctions

Like most people who aren't Westminster insiders, the first I knew about Andrew Marr's supposed lovechild was in January 2008 when Guido brought us the news.

It was in the same month that Marr took out the superinjunction; I can't be certain, but I think Guido's story was posted up a few days earlier. More significantly, it has never been removed - which suggests, among other things, that Marr's lawyers have been less than assiduous in covering his traces. As for Marr himself, he has limited himself to oblique comeback, famously dismissing the whole tribe of bloggers last year as "socially inadequate, pimpled, single, slightly seedy, bald, cauliflower-nosed young men sitting in their mother's basements and ranting." All this is puzzling, because (unlike various footballers and celebrities) the jug-eared journalist was in no danger of being outed as an adulterer. Except possibly in Private Eye.

Under the heading A Story You Won't Get from the BBC, the Guardian or The Times, Guido complained back in 2008 that

If this story was about soap stars, footballers or chart-toppers it would be all over the papers. If an actress on EastEnders had an affair with an actor on Coronation Street who was married to the star of Emmerdale which resulted in a love-child it would be front-page news on every newspaper. Yet Andy Marr fathering a child with A**** M**** whilst married to Jackie Ashley goes unreported. Across newsrooms, at Islington and Hampstead dinner parties it has been common knowledge for years. These three journalists are at the heart of the politico-media nexus that constitutes the new ruling class. The producers and editors who are the media gate-keepers would not be keen to dish the dirt on their own… despite the fact that it would be of huge interest to the public.

(My asterisks; just in case we're still not supposed to know the name of Marr's one-time mistress.)

I'm not sure that the story would have been of "huge interest to the public". Marr might be a well-known presenter but his wife is of interest only to Guardian readers and his former mistress (who has retained a dignified silence) is almost unknown outside her by-line. Today's Mail story, in which Marr "comes clean", fawningly celebrates him as "hugely respected" and "considered one of the stars of his generation, his languid charm and sharp intelligence making him a household favourite." The story certainly might have made a splash; but it didn't, and it is only news today because of the lifting of the injunction. Even the Sun doesn't take the opportunity to focus on the affair, instead concentrating on the far more newsworthy fact of the injunction.

Is this evidence of the Westminster media elite looking after its own? Or merely a commercial calculation that it was never actually much of a story? It was never a "kiss and tell". Crucially, the woman at the centre of it had no desire to sell her private life for money. Nor had Marr (apart from the sexual indiscretion itself) acted dishonourably. Quite the reverse. It doesn't reflect badly on his character that he was willing to pay child support for years without difinitively establishing that the child was his (she isn't). Marr is not a vicar, lecturing other people on the evils of adultery; and at least insofar as it concerns him, this particular soap-opera has no political implications.

So we're left with, basically, a piece of office gossip, neither in the public interest nor interesting to the public. Journalistically the story was a non-starter because no-one wanted to talk about it. There were no anonymous "friends" to explain why Marr was a ratbag or, alternatively, a great lay. No photospreads of The Other Woman posing in her underwear, showing off fake tits. Just three people, all saying "no comment." There was, it's true, a child involved - but the story was already five years old, had been known about in journalistic circles for five years, and only Guido Fawkes showed the slightest interest in reporting it. And his story was never taken down. The injunction not only leaves Marr open to the charge of hypocrisy, it also appears to have been both unnecessary and ineffective.

The situation is very different in some recent cases, such as the now-notorious contra mundum order granted by Mr Justice Eady the other day. Eady described it as "a straightforward and blatant blackmail case", in which the woman involved was threatening to sell compromising photographs to a newspaper if the adulterous man didn't pay her off. That, though, isn't how she saw the situation. Writing the other day in the Independent, she complained that

I still had feelings for the guy, with whom I had enjoyed a long relationship, and had decided to let him know I was planning to tell the story of my life. I thought it was only fair. It was always going to be a difficult telephone call, and I thought I had calmed him down, after his initial pleading, threats and a fair bit of bullying to try and get me to pull the plug. I had no intention of revealing any salacious details. I just wanted to write about what happened between us and the impact on my life. But the mere fact that I was going to write something was enough for him to want to conceal this from the public, and, more importantly, from his family.

Worse, though, she doesn't seem to have had an opportunity even to put her case before the court:

So when a text pinged in late at night, which wasn't from Mr Ex, formally alerting me to an email, on reading its contents, I shook. I was the subject of a court injunction which demanded to know to whom I had spoken; I was threatened with jail if I didn't respond through my lawyers within days. I didn't have a lawyer.

As the recipient of this anonymous gagging order, I have become the defendant. I have no name. I have no voice. I am referred to as a set of initials. Who am I? I can't tell you, because if I do I could serve a jail term for contempt of court. I'm a nobody. I don't count.

I had no say in whether this order should be put in place. I wasn't given the opportunity to put my point across. If I want a voice I have to spend huge amounts of money to prove that I have a right to freedom of expression. In an inversion of this country's judicial tradition, I am guilty until proven innocent.

All of which has had a severe effect on her life:

It's being accused of blackmail that's the worst part. I've never been in trouble with the law, apart from the odd driving offence. Yet I'm having to defend myself, and prove that I didn't blackmail him. Why do the judges take their word for it, without asking me?

The man who won this order considered that to even have my existence made public would be detrimental to his career. But what about my life? What about my rights to freedom of expression?

I have had severe stomach cramps and have been constantly on the verge of tears. I haven't known where to turn. I haven't been able to work.

Without knowing the circumstances of the case, it's impossible to know who to believe. The question, though, is whether the judge granting the order was able to take a balanced view of the case. This matters, not simply for reasons of natural justice, but because of the wording of Section 12 of the Human Rights Act:

(2)If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a)that the applicant has taken all practicable steps to notify the respondent; or

(b)that there are compelling reasons why the respondent should not be notified.

Was that the case here? Miss Anonymous Initials claims that it was not. Whatever one thinks of privacy law in general, to grant a coercive injunction without ensuring that all parties are properly represented undermines a fundamental principle of justice.

I'm also unimpressed by two other relative novelties in privacy law. The first is what seems to be a swiftly-developing doctrine that entering into a sexual relationship (illicit or otherwise) with someone involves an implicit promise never to discuss it in public. There's an increasing conflation between the public's alleged right to know (as embodied in the test of whether or not something is in the public interest) and the lover's right to sell her - or sometimes his - story. The two are quite distinct. The wider public has no "right to know" the details of anyone's private life - which is why it was quite wrong of the News of the World to set up Max Mosley by sending a wired-up dominatrix to his spanking party in Chelsea. But recent cases have been entirely different. They involve women who entered into relationships with famous men, not for the financial gain of selling their stories but for the reasons human beings have always entered into sexual relationships. They are about the "right to talk".

The relationship, in such a case, is as much hers as it is his; and if she should later decide to trade a celebrity connection for money that is (or should be) her decision. The assumption that there is a "reasonable expectation of privacy" here is a false one; people's personal privacy thresholds vary, and it is not reasonable to expect another person to keep quiet about their own private life simply because you happen to feature in it. Moreover, to gag a woman in such circumstances is to absolve the man concerned from taking responsibility for his own actions. The law in such cases is not behaving as a neutral arbiter, weighing competing rights; it is actively removing a basic right from one person to spare the blushes of another.

The second development concerns the adulterer's children. In another recent case Lord Justice Ward stated:

Then there are the children. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment....Regrettably I cannot agree that the harmful effect on the children cannot tip the balance where the adverse publicity arises because of the way the children's father has behaved.

The judge quoted both European human rights law and the International Convention on the Rights of the Child to the effect that a court "should accord particular weight" to the interests of children (before adding that "the interests of children do not automatically take precedence over the Convention rights of others"). "Think of the children", it strikes me, is usually a dangerous doctrine. Being teased in the playground is unpleasant, but is the prospect of a few off-colour taunts about one's father's bed-hopping the worst sort of bullying that can be imagined? Worse than "four-eyes", "Carrot-top", or "gay"? Children have no right to be shielded from their parents' bad behaviour, any more than they have the right for their parents not to divorce, or to have two parents in the first place, or for one of their parents not to be sent to prison when they have committed a crime. It is a slippery slope that is being embarked on here.