Bereavement damages: an award or an insult?
It is a Sunday afternoon –you put your feet up on the sofa and open the Sun on Sunday.What is it that you want to read about? Naturally - about a sex scandal. But what kind?
A number of exemplary sex scandals stand out: Ryan Giggs and the sister-in-law, John Terry and the girl next door, David Beckham and the Senorita, Jude Law and the Nanny, Wayne Rooney and the Granny, Jeffrey Archer and the prostitute, Max Mosley and the prostitutes, David Mellor and the Chelsea top, Brooks Newmark and the paisley bottom, Ron Davis and the badger. These are the sex scandals that have given the most pleasure to the British public, shows a that the best of them - those that have stood the test of time – and they have many features in common.
What is the ‘perfect’ sex scandal? The central figure must be person who has hitherto presented an impeccable image of themselves as, in most cases, a ‘family man’. This is a quality expected from footballers and MPs as can be evidenced by their commercial endorsements (the former) and their campaign leaflets (the latter). The partner of the family man will be heartbroken, and will herself never have strayed from the path of fidelity. There should be something that (for a tabloid) could be described as sexual deviance: another person present to watch, play or assist, and in fancy dress or a colourful piece of underwear. Any drugs involved should be mainstream and not supplied by the party selling the story to the newspaper under any circumstances.
The crucial factor is moral outrage - for without moral outrage there may be an argument that the racy revelations are not in the public interest. And without such public interest in the mix, the family man might do what the Sun on Sunday and the Mail consider an even greater crime than seducing the nanny – successfully apply for an anonymised privacy injunction.
The recent injunction row, PJS v NGN is in many ways a sequel to the 2011 blockbuster – CTB v NGN and Thomas – set in the Super Injunction Spring, the story of Imogen Thomas, a former Miss Wales who had an affair with the Premier League footballer Ryan Giggs. She and The Sun were consequently injuncted on the basis that identifying the footballer would be a breach of his privacy and the proceedings were anonymised to protect his identity. A tabloid game of ‘who-dun-it’ ensued, involving clues designed to provide the pieces of the jigsaw. The wild west Web leaked on and on and then in (what he claimed) was a heroic gesture for the world at large, John Hemming MP named Ryan Giggs in Parliament under the protective cloak of privilege. The long held convention that Parliamentarians should not use Parliamentary privilege to break court orders was ignored - not be for the last time.
These two cases gave rise to similar issues. Firstly, who and in what circumstances should have the right to privacy? How should it be balanced with freedom of expression and secondly, even in circumstances where there is a right to privacy, should the information become widely available online or in other jurisdictions (in the Giggs case the Scottish Sunday Herald, in PJS a US weekly celebrity gossip rag) would this not mean that the law was effectively ineffective (or ‘an ass’ as it was later labelled by the Mail?).
The debate raged on and was played out by the tabloids as a protest against spoilt celebrities who could afford expensive lawyers and were eroding their public interest journalism. Questions were raised as to whether the birth of the internet heralded the death of the injunction. In 2010 the Culture Media and Sport Committee, chaired by John Whittingdale MP, reported on, amongst other things, injunctions. He later went on to become Culture Secretary, but prior to this had a relationship with a woman who turned out to be a practising professional dominatrix. Mr Whittingdale claimed that this was the reason why he ended the affair (although the Spectator mischievously suggested that perhaps she had found out that he was a Conservative MP and dumped him immediately).
At the same time as the “Super Injunction storm”, something else was brewing which was certainly in the public interest and that tabloids certainly did not rush to report. This was the phone hacking scandal, which, following the tragic revelation that the murdered schoolgirl Milly Dowler’s mobile had been hacked, famously led to the Leveson Inquiry. The Leveson Report and its recommendations were published in November 2012. No recognised press regulator is yet in operation.
So, to the latest instalment. PJS v NGN is about an individual in the entertainment business who partook (with their partner’s knowledge) in a threesome. The couple involved in the threesome wished to sell their story in the Sun. They were prevented from doing so by an interim injunction, on the basis there was no public interest in the story in January 2016. The Sun, who had initially claimed that they wished to expose the prevailing hypocrisy of the claimant, who they argued had lauded monogamy, dropped this argument all together after the story was published by the US rag. The mainstay of the arguments became about whether the fact that the identity of PJS was no longer a secret should erode PJS’s privacy rights which, by that point, both sides agreed were engaged.
The Court of Appeal discharged its own injunction but the Supreme Court reversed. The interim injunction will now remain in place until trial. Lord Mance said, ‘There is no public interest (however much it may be of interest to some members of the public) in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well known; and there is no right to invade privacy by publishing them’. The Sun, however, said that ‘free speech [has] drowned in a paddling pool of olive oil aided by celeb and 3-way romp loving partner, abetted by four old duffer judges ignoring the internet’. Lord Toulson (dissenting), presumably having escaped allegations of dufferism in the process said ‘it will not go away’. Lord Neuberger pointed out that “the heavens wouldn’t fall at [their] decision”.
So what was it about the PJS’s story that made the Sun want to spend an inordinate amount of money on legal fees to earn the right to publish this story? They had John Whittingdale’s story but, rightly many would say, chose not to publish it.
If we go back to the perfect sex scandal we can see that the PJS story falls precisely into those stories that the Sun felt the British public would enjoy the most (whereas the Whittingdale story seems to miss the boat). Mr Whittingdale was a single man, so moral outrage (and thus public interest) was difficult. He is not a celebrity. There were no third parties or drugs. The moral outrage is this case was that of the newspapers in rejecting the suggestion that they had rejected this story because they had been selective about who they chose to feature in their sex scandals.
PJS, on the other hand, caused no such debate at the Editor’s conference. PJS is an entertainer that the public are very interested in. PJS has children. PJS is married. PJS’s children had been photographed. PJS had some amusing props. Tick. Tick. Tick. It met the editorial criteria after all… Because, actually, nobody was more scandalised then the very newspapers who wished to publish the story in the first place.
In truth, the PJS story in itself does not matter. It is the precedent that has been set that terrifies the tabloids the most. What will become of them now that it seems that the great English Sex Scandal is in decline? What will they publish in the future?
As the sun sets on the sex scandal, and the public genuinely seem to be having a ‘not tonight darling’ moment, preferring a snooze after Sunday Lunch rather than to read all about it, the tabloids no longer reign so powerful in terms of their ability to make or break a person…marriage…a career…an election.
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