As far as the detailed legal analysis of Max Mosley’s lost case in Strasbourg today, I’ll bow to the greater wisdom of David Green, writing today in the New Statesman.
As he points out, far from the Mosley reversal being a victory for democracy against the rich and famous who would abuse the legal process, its actually a victory for those with deep pockets. It means, in future, that those with money to burn, can threaten papers with ruinous legal action on the off chance that the individuals decide to take those papers to court and win – and it will be a brave newspaper indeed that takes on that sort of risk.
I will, however, add a perspective that I have on this decision both as a journalist and as an activist/advocate.
The rich and powerful evade the press
First up as journalist, I have little faith in how the law works right now. It does not protect the press and, increasingly, I have found my life made miserable by the fears of editors in respect of what someone rich and powerful MIGHT do by way of retaliation. I have, over the last two or three years, every so often encountered a story where I have someone bang to rights.
In one instance, a few months back, a well-off and very well-connected business man lied to me. I know he lied because I asked him a series of very careful questions and then ran his answers back to him. Yes, yes, yes and yes. I had my story.
Until about four hours later he issued an official release in which he said – you’ve guessed it: no, no, no and no.
I discussed this with my editor at the time and… we didn’t run the story. Too risky. The guy was probably a bad lot. Had probably broken the law. But he had the money (and the attitude) to start a libel action and, given the cost of defending such, the publication in question could not have afforded to take him on. The story died.
That, I guess, in a nutshell, is why we need cheaper law.
The marginalised will suffer as before
My second experience lies in playing off-stage advocate to an individual on the receiving end of a professional complaint. For reasons that will become clear, I’m not going to go into detail here. But it is a not uncommon experience: because I write about the law, have a good legal mind and also deal on a regular basis with members of marginalised groups (from LGBT, to kink, to sex work) , I do get asked for help and advice.
I give it where I can. Occasionally I muck in a bit more. In this instance, my friend was in an appalling position. A large part of her woes derived from press misconduct. Her best line of defence lay in going even more public. But personal reasons (including the real possibility of physical threat to her and to her nearest and dearest) meant the last thing she could do was go public.
And that’s true not just of her, but of many others I deal with: they are treated very badly by employers and the like because of their marginalised status; but they are terrified of press coverage, because that will out them even further.
The only possible approach for my friend was an injunction. Except she would have had difficulty affording such and an injunction without stipulation that the press could not report on the fact of it was worse than useless.
The logic is pretty obvious, really. If you don’t want the press reporting on your private affairs, there really is no point getting an injunction that says they are allowed to report you have an injunction out, but not what its about. So-called super injunctions make a lot of sense. Because they are pretty much the only way to put a lid on seeing your privacy breached even further.
And so it goes. The UK press will crow today their small victory over Mosley. Meanwhile, I know, the dozens of small people, caught in the same trap as my friend, will see their lives trashed because the press take an interest in them, irrespective of how reasonable that interst, or how guilty they actually are.
And the villains – the ones who really are a menace to society – will continue to hide behind the mere threat of suing.
Wonderful. The British Press can be truly proud of itself today.