Super Solution to Super Injunctions

24 05 2011

Category: Law, Media, Privacy

The legal earthquake over superinjunctions is the result of a number of tectonic plates crashing up against each other; European legal codes v English common law, and European privacy v Anglo-Saxon free speech.

There’s no good reason this has become such a public mess. Except that the law is not used to being hurried and lobbied and that is what has happened. A whole new, untested, area of law emerged after Max Mosley won his privacy case. The judges were thrown by this and have been struggling ever since to come up with a credible and coherent response. There is one – and it lies within longstanding English law.

Celebrities and their lawyers have taken advantage of the privacy ruling to use it to try and get what they want, their own privacy and the privacy of those close to them.

Looking at the list of injunctions granted, they can be summed up like this:

  • celebrities misbehaving
  • celebrities misbehaving
  • celebrity misbehaving
  • nasty celebrity
  • celebrity misbehaving
  • celebrities misbehaving

And through all of them there is a clear reason why anyone would want to report them in the first place; profit. Profit in newspaper sales and/or profit to the person selling the story.

Profit is a word that should get those looking for a legal solution very excited. The law loves money. Let me rephrase that; the law loves the concept of money. It’s identifiable and quantifiable and makes things straightforward and easy when it comes to judging cases.

So if the judges feel there is a valid reason to protect the privacy of the people involved then go for the profit.

Let’s start with the newspaper. If a newspaper breaches the privacy of a celebrity, where it knows or ought to know it should not to have done so then the newspaper ought to be liable in damages to the celebrity and anyone around him or her who is affected by the unwarranted intrusion. And if those damages are assessed in relation to the newspaper’s revenue (in effect paying a fee for the extra revenue gathered from running with the celebrity’s private affairs) that’ll make an Editor pause.

And those who profit from kiss-and-tell (or spank-and-tell); the profit from selling their story is entirely due to their association with the celebrity. All of that profit gained by that association could be passed to the celebrity, in addition to damages for the intrusion.

If there are people who need to be protected, that would protect them without compromising free speech or stories where there is a public interest in reporting them. The judges, lawyers and politicians wanting to work out how to deal with this could take a tip from a line in the film ‘All the President’s Men’ – “follow the money“. 

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