“Legal reasons”

The British press is legally somewhat more hemmed in than the US press, both by law (for instance, the and various arbitrary gag orders) and the threat of libel suits. (Fun fact: The truth defence against libel charges was eliminated in 1606 — at least as regards the sovereign, unpleasant claims are likely to be more damaging if they are true than if they are lies. An exception was made for “good motives” in 1792, but for the public interest in 1843. A more general substantial truth defence was reinstated last month.)

This leads us to this weekend’s blockbuster news. The Guardian has reported that the Mail on Sunday has reported

David Cameron has held crisis talks at Downing Street after being told of allegations of a sensational love affair which has potentially significant political implications for him.

For legal reasons, the Mail on Sunday cannot disclose the identities of the people involved or any details of the relationship – even its duration – other than that they are middle-aged figures. The affair has now concluded.

Hilarious! Like a Mad-Lib sketch for a political sex scandal. Details presumably to follow soon on Twitter.

The British press are not easily intimidated, and have a sense of irony not much in evidence in the US media (blogs excepted). This leads to cat-and-mouse games like the above that veer between amusing and disturbing, such as when the government banned IRA supporters from being broadcast, leading the BBC to hire actors to read the words of Gerry Adams and other Sinn Fein leaders verbatim; or when in 2011 various publications (foremost the satirical news magazine Private Eye) printed winking puzzle-type reports of enjoined scandal reportage, such as

[t]he name of the entertainment company which sacked a female employee after an executive ended an extramarital affair with her and told bosses that “he would prefer in an ideal world not to have to see her at all and that one or the other should leave.”

‘how an author of best-selling books and newspaper columns drawing on his own personal life has blocked his ex-wife from writing a book of her own or talking to any journalists about her time with him’

(The 2011 events are summarised on Wikipedia.) A Scottish newspaper put a footballer whose extramarital affair was the subject of an injunction on the front page, arguing that the injunction had force only in England and Wales.

This leads to an arms race of court orders — injunctions against publishing information turning into anonymous injunctions, such as that obtained by Mr. Fred Goodwin (at that time Sir Fred, before his knighthood was annulled and cancel for his outsized role in crashing the world economy — and here I thought knighthoods could only be cancelled by drowning the knight in a butt of Malmsey…), that famously banned the press from reporting any information about the secret private matter at issue, but even from mentioning who had received the injunction or from identifying him as a banker.

Then came the superinjunctions, where not only the relevant affair or malfeasance must be kept secret, but the very existence of the injunction. (Twitter was famously sued in 2011 when a user posted a list of superinjunctions. The irony (if that’s the right word) is, since superinjunctions are secret, there is no way to know whether one is in contempt of court — subject to up to 2 years imprisonment — unless you are the target.) A way out was offered by Liberal MP John Hemming, who raised a question in Parliament about a super-injunction issued to protect footballer Ryan Giggs. Journalists were then free to publish the information, not as salacious gossip but as a subject of debate in parliament. (It’s not just petty gossip. In 2009 the Guardian was prevented from publishing information about illegal waste dumping by trading firm Trafigura, extending even to reporting on a question in Parliament. This super-injunction was effectively broken by Twitter.)

This led to the hyperinjunction, a variant that specifically forbids the recipient from discussing the matter with “members of Parliament, journalists and lawyers”. This all seemed to be drifting uncomfortably toward a constitutional crisis, in a country with no clear traditions on separation of powers. Fortunately, the current government seems to have reigned in the worst of the judicial privacy-for-the-wealthy excesses — or maybe they’ve just done a better job of keeping it all secret?

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