In Britian's increasingly celebrity-driven popular culture, the exploits of sports stars continue to hold a great fascination for the public, hence the obsession with their lives in the popular press. This month in the News of the World alone, we've seen the Ricky Hatton cocaine expose as well as details of Wayne Rooney's relationship with escort girl Jenny Thompson. In legal terms, this has been accompanied by the rise of the 'super injunction', a legal device by which celebrities attempt to keep details of their private lives out of the papers. I thought I'd take a look at what a super injunction is and how it works.
This, of course, isn't a Manchester City issue, but it had implications for one of the Blues' players, Wayne Bridge, when John Terry failed to keep quiet his relationship with Bridge's ex Veronica Perroncel. Moreover, who knows what other stories may surface in the future. The word from MCFC is that City's Abu Dhabi owner is keen for the club to present a wholesome family image and that players' lifestyles are now a factor in determining the club's recruitment policy. Nevertheless, sooner or later a newspaper is likely to get hold of information
This being Britain, they'll want to print. Not for us the disdian of, say, the French for salacious gossip, an attitude that meant the existence President Francois Miterrand's illegitimate daughter by a mistress going unreported for many years despite being well known within the French establishment.
For years in Britain, there was no right to privacy. More or less anything was fair game, though the success of the likes of Elton John in 1987, when he obtained huge libel damages from The Sun newspaper, arguably deterred the press from pursuing the most notable celebrities with the resources to employ major libel lawyers in favour of softer targets.
The big change, though, came with the adoption of the Human Rights Act 1998 by the then new government of Tony Blair. The introduction of tthis piece of legislation incorporated into English law the European Convention on Human Rights, article 8.1 of which provides an explicit right to respect for a private life. Previously, a number of cases had established that there was no explicit right to privacy in English law.
In legal terms, the development of this doctrine since then has been pretty interesting (yes, really!) and the situation remains in a state of flux: further clarifications and extensions will no doubt follow. But to try and distill it into simple terms, the breach of someone's rights under the ECHR is permissible if in the public interest. So exposing as a hypocrite the adulterous politician who trades on his family man image isn't outlawed, but, for example, revealations aren't when they concern a public figure who hasn't made his private life fair game by cultivating it as part of a crafted persona for PR purposes.
This latter point explains why the motor racing administrator Max Mosley, for instance, won damages when the News of the World revealed his penchant for S&M themed orgies. The court decided, among other things, that someone's enjoyment of that kind of activity has no intrinsic public interest value.
It's always been possible to obtain an injunction - a court order that compels someone to do something, or restrain from doing something, with the possibility of the court punishing any failure to comply with further sanctions - that prevents someone from publishing something that infringes your legal rights. If Mosley had been aware of the story about him before it had broken, he, as it turns out, would have been able to prevent publication.
And this is what many footballers are trying to do now: prevent publication. They've been aided by a new type of injunction, the so-called "super injunction" whereby not only can material not be published, but the existence of the injunction itself can't be referred to. Thus, a story that was the subject of a super injunction concerning oil trader Trafigura only saw the light of day when questions were asked in Parliament: Trafigura actually tried to assert unparalleled restrictions on the reporting of Parliamentary proceedings but eventually backed down.
Of course, these days the Internet makes it extremely difficult to stop all publication of a certain story. In theory, no one should know that journalist and broadcaster Andrew Marr obtained a super injunction concerning aspects of his private life, or that golfer and Ryder Cup captain Colin Montgomerie has managed to prevent publication of photos that his ex-girlfriend may have in her possession. Yet know we do, and a quick Google will reveal to anyone who's interested just why the gentlemen in question were so keen to keep their private lives private.
We generally find out that footballers have been caught out when they lose in court. Hence, at least some of John Terry's indiscretions made the tabloid press, as did Wayne Rooney's with Thompson and another young woman. The courts, it seems, are willing to consider that it may be in the public interest to publish material when footballers want to protray an image of marital bliss to protect their lucrative endorsements on the one hand while shagging anything that moves on the other. As Mr Justice Tugendhat drily noted in the Terry case, "The nub of the applicant’s complaint is to protect his reputation, in particular with sponsors."
As we speak, rumour has it that a number of other players are battling to prevent disclosure of various matters. One major north west club in particular - and not our very own Manchester City - is rumoured to be affected. This illustrates that the super injunction is becoming more and more commonly used. "In 2008, [The Guardian] was served with six. In 2007, five. Haven't heard of these? Of course not, these are secret gag orders; the UK press has given up counting regular injunctions," Wikileaks editor Julian Assange commented after the Trafigura episode, noting that in the first nine months of 2009, at the point at which it was able to publish the Trafogura information, the paper was served with ten such injunctions. I've not found numbers from 2010, but the anecdotal evidence suggests that it's a growing tendency.
Despite being a lawyer, the thing that interests me about this the most isn't actually the legal aspect but what these stories say about British society (I almost wrote, "the society we live in but I remembered that I actuallky don't live in it any more!"). Way back around 15 years or so ago, I became closely acquainted with a woman who had been on the books of an escort agency in a large northern city. She'd had clients from a number of football clubs, including ours, but had been more or less passed around several of the playing staff plus other senior figures at one in particular (by coincidence, the same one rumoured to have several players currently looking for super injunctions).
I was rather surprised that footballers should feel the need to pay for it, frankly, and told her so. After all, weren't they met by willing and attractive girls every time they set foot in a trendy bar or nightclub? They were, she said, but there were two problems with that type of encounter. Firstly, some of the girls were keen to get their claws into a footballer as a passport to a WAG lifestyle, whereas those they met on a paying basis would go away unless and until they were booked again. Secondly, a girl from an escort agency could be relied on to keep her mouth shut (afterwards, one presumes, rather than during), minimising the risk of a conquest being tempted by ten figure sums on offer for a kiss and tell.
These days, it seems, neither of these propositions holds any longer. There appear to be girls working for escort agencies who are happy to make that information public if it gets them in the papers and gives them a shot at fame. I'm not sure that I'm overly enamoured by what that says about Britain and British pop culture in 2010.
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