You’ve probably heard the joke doing the rounds this summer. Joe Bloggs, the Premier League footballer, has been given the cold shoulders by his teammates after disgraceful photographs appeared of him in tabloid newspaper which heaped yet more shame on the already tarnished profession.
He was on holiday with his wife. Boom, boom.
Before the red-top industry had more pressing matters to concern itself with in recent days, this inversion of logic has been the staple diet of the English tabloid summer: Mr Premier League footballer and the Missus frolicking poolside in their smalls. And for once, you’d imagine these footballers don’t actually mind the intrusion. When they spot the long-lenses of the paparazzi in the distance, rather than shy away into the shadows, they’re probably grateful of the opportunity to show the wider world that they couldn’t possibly be one of those footballers hiding an affair behind a ‘super-injunction’.
Ah, the ‘super-injunction’, a term that football fans became as familiar with in the last few weeks of the English football season as zonal marking. the term ‘super-injunction’, however, does not accurately describe what football fans have been gossiping about in recent months. A super-injunction is a court order which prevents both private information about an individual, and the very existence of the injunction, from being published. It is believed that only two of these injunctions were granted in England last year. What the lawyers of a number of footballers have been doing, on the other hand, is seeking an injunction to stop the publishing of private information where the names of either or both parties to the proceedings are not disclosed. It is called an anonymised, or anonymity, order but that doesn’t work half as well in a newspaper headline as ‘super-injunction’, does it?
There has been so much hype about footballers hiding behind these anonymised orders that it’s easy to believe that half the players Premier League have had their legal representatives in the High Court in London in recent months. The reality isn’t nearly as dramatic. So far in 2011, there have been approximately 17 privacy injunction cases in England. They represent an interesting array of cases: some have concerned emails sent to the wrong recipient with confidential information held within, another relates to blackmail threats sent from anonymous Twitter accounts. Altogether however, only three cases whose judgements have been published to date actually concern sportsmen. The first, involving Imogen Thomas, is one everybody knows about. The second is JIH v News Group, with JIH (the initials bear no resemblance to his name) an unmarried sportsman who had an affair with another woman. The third, TSE and ELP v News Group (the proprietors of the Sun and the News of the World newspapers), concerns a married footballer and the women he had an affair with both seeking to stop details of their relationship being published.
Interestingly, in this case, the footballer pleaded not only that publication of the affair would have a devastating effect on his wife and children but, the lawyers for the footballer stated that, “it has become common for footballers whose private lives are exposed by the media to be booed during games and be the subject of cruel chants”.
The poor soul.
But while it may be difficult to elicit any form of sympathy for the sportsmen in question, anybody with the means to launch a privacy injunction — the cost can be between £50,000 to £100,000 — would be mad not to do so. As things stand, the incorporation of the European Convention of Human Rights (ECHR) into English law through the Human Rights Act, and more specifically the provision in that legislation which states that courts must balance privacy rights against the right to freedom of expression, means that in 99% of cases, the courts will grant an injunction in favour of a person seeking to guard details of their private sexual relationships.
Therefore, any sportsman who decides, for whatever reason, not to invoke their privacy rights is effectively placing a target on their heads and asking newspapers to go out and dig out as much dirt on them as they can.
Another interesting aspect to this entire debate is the role that newspapers play in the legal proceedings. In many cases, including TSE and ELP v News Group, lawyers for the Sun newspaper did not contest the privacy order. No arguments were put forward whatsoever by the newspaper that publishing details of the affair was in the public interest. Instead, the newspaper sat back and simply allowed the privacy injunction to be granted unopposed and then splashed across their newspaper the next day that they had been gagged by “the love-rat’s lawyers”. Such words might have a lot more meaning if the newspaper actually fought to justify publication of the story. The point has also been made that if newspapers continue to publish silhouettes of that resemble the person taking out the injunction, or placing pictures of them on the same page as the injunction story, more genuine super-injunctions will have to be granted, the draconian-type injunctions where their very existence cannot be reported.
However, in this day and age, with the rise in prominence of Twitter and other social networking sites, are such court orders effectively redundant? There is, on the back of the information that was available on Twitter concerning the Imogen Thomas case, certainly an argument on those grounds, but to say that privacy orders shouldn’t be granted simply because they may not be able to be enforced is like arguing that because people regularly break the speed limit, there should be no speed limit. Enforcement is an issue but that can, and will, be sorted out with one high-profile contempt of court case.