Celebrity threesome privacy injunction

Not actual footage of [CENSORED] or [CENSORED]

The hot legal news story of the past week has been the super injunction granted to [CENSORED] who is the spouse of [CENSORED], a world famous person in the entertainment industry.  The injunction revolves around claims that [CENSORED] cheated on [CENSORED] by having a threesome with two other people, one of whom is a “businessman” who would like to make a lot of money from his relationship with [CENSORED] by stabbing [CENSORED] in the back.  Presumably so he can retire early.  I don’t know, I’m just guessing here.

Understandably the newspapers want to print all the steamy news about how [CENSORED] did this, did that or did the other to his two threesome companions, all behind the back of [CENSORED] and then went on to have an affair some months later.  Meanwhile, for equally understandable reasons both [CENSORED] and [CENSORED] would like to keep the story a secret.

I have to admit that I haven’t thought much about injunctions since I left Bar School some years ago so I had to look up exactly what they are and when you can get one.  In short, an injunction either requires somebody to do something or, more commonly, prevents them from doing something.  To get one such as this celeb super injunction you must show the court that:

1.       You have a grounds to bring proceedings; and

2.       The other party is threatening to (or actually has) behaved unconscionably or is/has interfered with your equitable rights; and

3.       It is just to grant the injunction; and

4.       Damages would not be a sufficient remedy.

An injunction preventing the publication of information is a powerful weapon as we are seeing at the moment with many of us fully aware who the people involved in this case are but not able to say.  It is also increasingly an irrelevant and obsolete concept in desperate need of reform.

Because I live, work and write in England, I cannot say who is involved.  I know that publications in Scotland, the USA and, I think I’m correct in saying, New Zealand as well as at least one Irish blog have published the names, but I cannot say which publications these are because I might breach the injunction simply by pointing you in the direction of the information – obviously the High Court doesn’t know about Google – incidentally, Google points to the information if you know what to search for, how are they not in breach and being shut down?

Many of the foreign publications (yes I’m including you in that Scotland with your weird laws that you keep all to yourselves) are scared enough of the English courts that they have either refused to publish their stories online or, in one case, have blocked British internet users accessing the relevant stories.  Not the Irish one though… he does not give a crap!

Shh... don't tell the tabloids

The truth though is that if you know how to find information on the internet (and who doesn’t) then it is pretty easy to discover the identity of everyone involved, which makes a mockery of the injunction in England and Wales.  If you know how to make it appear that you are outside of the UK then you can even find the hidden stories.  The whole things reminds me of the ‘Spycatcher’ silliness where the Government of the day banned publication of Peter Wright’s book but, even in the pre-internet days, it was easily obtainable from friends holidaying abroad (including Scotland… again – what do you people have against our English injunctions eh??) who would bring sacks back to hand out.  In one go the Government turned what would have been a relatively minor and obscure autobiography into a worldwide best seller and its author into a millionaire.

Clearly there must be some balance between an individual’s desire for privacy, their right to a private and family life and the rights of the rest of us to know what’s what in the world.  I have to question whether the story of [CENSORED]’s partner, [CENSORED], fucking two other people and maybe having an affair a few months later is really in the public interest.  If the philander were a politician or some sort of campaigner for family values then I can see how it would be relevant.  But that isn’t the case.  The only thing I have seen that comes close to having any shred of public interest is that [CENSORED] is involved with a sexual health charity – but that strikes me as a very tenuous point.

It has been said that this injunction is wrong because if it’s allowed for [CENSORED] and [CENSORED] then it will allow politicians and other important people (Dominic Strauss-Khan’s name is often mentioned) to get away with anything they like.  One writer (who I cannot name for fear of letting you know where to find out the names of either [CENSORED]  or [CENSORED]  or even businessman, [CENSORED]) said, “Fear of public exposure is about the only way we can restrain wrongdoing by the rich and the powerful”.  This is true and yet wrong.  On the one hand, fear of being found out may keep many a bad man good.  But on the other hand, why should somebody be subject to a gross invasion of their private and family life just because they happen to be rich (or married to someone who is rich)?  Also, who are we to judge what counts as “wrongdoing” worthy of public condemnation when the activity is not a crime and has no bearing on the public at large? 

In a properly functioning system a judge should be capable of telling the difference between allegations against people in positions of power versus people whose sole claim to fame is that their partner’s job it is to entertain the masses.  Revelations about a politician may show the public that he is not a man of his word while maintaining the secrecy could leave him open to blackmail by those in the know.  Whereas, the public have nothing except titillation to gain from knowing that the woman on the tele in that programme about Norwegian pig farmers who solve crimes in their spare time fucked him off Emmerdale Farm one time while being watched by an elderly badger (I don’t know what celebs get up to but I assume it’s all weird).  Knowing what the politician who proclaims family values during the day while paying to be tied up, flogged and pissed on behind his wife’s back in the evenings tells us that he’s a man we shouldn’t trust.  But, what does our knowing that the partner of a celeb cheated on said celeb and no doubt caused serious damage to their relationship tell us?  I’d suggest nothing at all.

The story shows us two things.  First, national privacy injunctions aren’t really worth the effort – had the Sun published this story last week it would have blown over by now with most people shrugging and saying “who cares”.  Even the “new” revelation they held back for the weekday edition that [CENSORED] had an affair five months after the threesome would have attracted little attention.  But, because of the injunction it’s now been international news for a week and will continue to receive a huge amount of media attention until either the injunction is removed, which is probably will be, or until everybody in the country finds out anyway by a process of drip-feeding. 

 

None of these men is [CENSORED] or [CENSORED]

Secondly, if we are going to have privacy injunctions, and I think we should, they need to be seriously beefed up to allow enforcement internationally.  This sort of thing requires standardising of laws across numerous jurisdictions (something I know the #Brexiters hate) and a robust system allowing breaches to be punished wherever they occur.  This is a problem because Americans love their freedom of speech more than we love tea and are often very unhappy at anything that waters down that right.  While many European nations have even stricter privacy laws than us in the UK.  For it to work privacy and free speech laws would need to be standardised across the globe… good luck negotiating that.

In conclusion, is this story a damning indictment of the British courts?  No.

Does keeping the story out of the public domain hurt the public interest in anyway? No.

Is it simply a story being manufactured by the press to get their own way and sell more papers? Yes.

More importantly, it shows us that the concept of national law focusing solely on what happens within national boarders is something we will have to let go of in the future to make way for a well-designed and robust international legal system that can operate seamlessly across a variety of different jurisdictions.