Privacy, the public interest and "a woman called Imogen Thomas"

The significance of the <em>CTB v News Group</em> injunction.

The first sentence of yesterday's privacy ruling by Sir David Eady in CTB v News Group Newspapers made it clear which way the rest of the judgment was going to go.

While the others who were to be named in the judgment were accorded the usual judicial courtesy of being introduced as Mr This or Ms That, no such respect was accorded to Ms Imogen Thomas, the second defendant. Instead, she is introduced with the dismissive "a woman called Imogen Thomas".

But worse was to come for Ms Thomas. For, even though there had been no cross-examination of the claimant's evidence, and even though her lawyer stressed that she denied asking the claimant for any money (see paragraph 17), Mr Justice Eady said it "appeared strongly" that Ms Thomas was blackmailing the claimant (paragraph 9).

This was a remarkable observation, not least because it was a suggestion of criminal liability. Not even the claimant's lawyers had made the allegation against her.

Today, rival tabloid newspapers to the newspaper defendant have splashed on this "Blackmail" point with photographs of Ms Thomas. Her reputation appears to have been questioned by our most famous libel judge on the basis of untested -- and denied -- evidence. Even by itself, this is an extraordinary development.

So why was it done? Why did Mr Justice Eady use the absolute privilege of a judicial statement to make such an observation on a defendant in a case before him? Well, partly he did so because he could. The evidence of the claimant seems to have been detailed and compelling, and it appears to have been based in part on text messages. Although Ms Thomas appears to have made a bare denial, she did not submit evidence to controvert the claimant's evidence. On the balance of the evidence placed before him, it was entirely open to Mr Justice Eady to form the view he did for the purpose of the interim injunction until trial.

However, more importantly, such a finding by the court provided part of the public interest in maintaining the injunction. The private lives of the claimant and his family were engaged; and so any interference with this right had to be in the public interest.

It was not enough to assert a right to free expression. In cases such as this, the court has to balance the public interest in freedom of expression against the public interest in the privacy of individuals. Here, the court found that, on the basis of the (untested but not uncontroverted) evidence of Ms Thomas's conduct, and on other evidence, that there was no public interest in publication of details of the claimant's private life. Instead, the public interest was in ordering that the private information should not be published and that the claimant's name not be made public.

This whole exercise is perhaps artificial: the widely-suggested claimant in this action is merely a couple of mouse clicks away. But, as paragraphs 27 and 28 of the judgment makes clear, the fact that some information is supposedly in the public domain does not mean that the parties to whom the court order is addressed can escape. This creates the rather unhappy consequence for the newspaper defendant of carrying the legal costs of fighting the case, while not commercially benefiting from the "kiss and tell story".

This and other cases are steadily making such traditional "kiss and tell stories" more difficult and costly. This is not necessarily a bad thing; if there is no public interest with an interference with someone's private life, then it is hard to justify the press intrusion and public humiliation. Indeed, a respect for personal privacy and an avoidance of humiliation are marks of a civilised society. And, in this case, the newspaper did not even try to argue there was a public interest.

Supporters of privacy law will emphasise that, unlike libel, the "public interest" is built into the DNA of privacy law. There should never be any privacy injunction if the public interest in publication outweighs the need to respect privacy. The lack of a public interest defence that has long marred libel law should thereby not be a problem with privacy law.

That said, the future for privacy law is uncertain. The courts do not want their orders to be futile, and so widespread internet publication of personal details may mean that injunctions are not granted too readily. The tabloid press may convince politicians that there should be new privacy legislation that is not so focused on injunctions (though the "phone-hacking" scandal shows how little the tabloids care for general statutory protections).

There is currently a battle for primacy in Fleet Street over the jurisdiction of the High Court and the freedom of the press to do what it likes with private information. It is not certain who, if anyone, will win this particular battle: not all conflicts have a tidy resolution. But in the meantime, the commercial basis of the traditional "kiss and tell story" will need to be reassessed, and it is difficult to see why that is a bad thing.

 

David Allen Green is legal correspondent of the New Statesman and a media lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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How the mantra of centrism gave populism its big break

A Labour insider reflects on the forces behind the march of populism. 

For just under a quarter of a century, British politics has been dominated by what might be called, paradoxically, a “theology of centrism” - the belief that most people were more concerned with what works than ideology, and that politics should principally be the art of improving the delivery of public goods. It was a theology that, for all their policy differences, united Tony Blair and David Cameron. Anyone who thought electoral success could be won anywhere but from the centre was either naïve or fanatical, or both... but definitely wrong.

Now, populism is on the march across the West. In Britain, as elsewhere, the political class is unnerved and baffled.

So what happened? Partly, as with all revolutions in politics, the answer is: “events”. Unsuccessful wars, economic crashes and political scandals all played their part. But that isn’t enough of an explanation. In fact, the rise of populist politics has also been a direct result of the era of centrism. Here is what has taken place:

1. A hollow left and right

First, the theology of centrism was the culmination of a decades-long hollowing out of mainstream politics on the left and right.

In the mid-20th century, Conservatism was a rich tapestry of values – tradition, localism, social conservatism, paternalism and fiscal modesty, to name but a few. By 1979, this tapestry had been replaced by a single overriding principle - faith in free-market liberalism. One of Margaret Thatcher's great achievements was to turn a fundamentalist faith in free markets into the hallmark of moderate centrism for the next generation of leaders.

It is a similar story on the left. In the mid-20th century, the left was committed to the transformation of workplace relations, the collectivisation of economic power, strong civic life in communities, internationalism, and protection of family life. By the turn of the 21st century, the left’s offer had narrowed significantly – accepting economic liberalism and using the proceeds of growth to support public investment and redistribution. It was an approach committed to managing the existing economy, not transforming the structure of it or of society.

And it was an approach that relied on good economic times to work. So when those good times disappeared after the financial crash, the centrism of both parties was left high and dry. The political economic model of New Labour disappeared in the first days of October 2008. And when a return to Tory austerity merely compounded the problem of stagnant living standards, public faith in the economic liberalism of the centre-ground was mortally wounded.

2. Fatalism about globalisation

Second, Labour and Tory politics-as-usual contained a fatalism about globalisation. The right, obsessed with economic liberalism, welcomed globalisation readily. The left under Bill Clinton in the US and Blair in the UK made their parties’ peace with it. But globalisation was not a force to be managed or mitigated. It was to be accepted wholesale. In fact, in his 2005 Conference speech, PM Tony Blair chastised those who even wanted to discuss it. “I hear people say we have to stop and debate globalisation," he said. “You might as well debate whether autumn should follow summer. They're not debating it in China and India.” (I bet they were, and still are.) The signal to voters was that it was not legitimate to fret about the pace and consequences of change. No wonder, when the fretting began, people turned away from these same politicians.

3. A narrowing policy gap

Third, the modernising projects of Blair and Cameron ended up producing a politics that was, to use Peter Mair’s term, “cartelised”. The backgrounds, worldviews and character of party elites began to converge significantly. Both parties’ leaderships accepted the same external conditions under which British politics operated – globalisation, economic liberalism, sceptical acceptance of the EU, enthusiasm for closeness to the US on security issues. The policy space between both main parties narrowed like never before. As a result, economic and class divisions in the country were less and less reflected in political divisions in Westminster.

The impression arose, with good reason, of an intellectual, cultural and financial affinity between politicians across the main divide, and between the political class and big business. This affinity in turn gave rise to a perception of “groupthink” across the elite, on issues from expenses to Europe, and one that came with a tin ear to the concerns of struggling families. It may be misleading it is to depict all politicians as snug and smug members of a remote Establishment. Nevertheless, social and economic convergence inside Westminster party politics gave populists an opportunity to present themselves as the antidote not just to Labour or the Tories, but to conventional politics as a whole.

4. New political divides

Lastly, the populist moment was created by the way in which new electoral cleavages opened up, but were ignored by the main political parties. The last decade has seen a global financial crash that has restored economic insecurity to frontline politics. But at the same time, we are witnessing a terminal decline of normal party politics based fundamentally on the division between a centre-left and centre-right offering competing economic policies. 

Of course economics and class still matter to voting. But a new cleavage has emerged that rivals and threatens to eclipse it - globalism vs nationalism. Globalists are economically liberal, positive about trade, culturally cosmopolitan, socially progressive, with a benign view of globalisation and faith in international law and cooperation. Nationalists are hostile to both social and economic liberalism, want more regulation and protection, are sceptical of trade, see immigration as an economic and cultural threat, and have little time for the liberal international order.

The factors that drive this new electoral divide are not just about voters’ economic situation. Age, geography and education levels matter – a lot. Initially both main parties were tectonically slow to respond to this new world. But populism – whether Ukip, the SNP or Theresa May's Tories – has thrived on the erosion of the traditional class divide, and sown seeds of panic into the Labour party as it faces the prospect of sections of its traditional core vote peeling away.

Centrists thought their politics was moderate, pragmatic, not ideological. But signing up to free market liberalism, globalisation and an economistic view of politics turned out to be seen as a curious kind of fundamentalism, one which was derailed by the 2008 crisis. The exhaustion of the theology of centrism did not create populism – but it did allow it a chance to appeal and succeed.

Those on the left and right watching the march of populism with trepidation need to understand this if they are to respond to it successfully. The answer to the rise of populist politics is not to mimic it, but to challenge it with a politics that wears its values proudly, and develops a vision of Britain’s future (not just its economy) on the foundation of those values. Populists need to be challenged for having the wrong values, as well as for having anger instead of solutions.

But calling for a return to centrism simply won’t work. It plays precisely to what has become an unfair but embedded caricature of New Labour and Notting Hill conservatism – power-hungry, valueless, a professional political class. It suggests a faith in moderate managerialism at a time when that has been rejected by events and the public. And it tells voters to reconcile themselves to globalisation, when they want politicians to wrestle a better deal out of it.

Stewart Wood, Lord Wood of Anfield, was a special adviser to No. 10 Downing Street from 2007 to 2010 and an adviser to former Labour leader Ed Miliband.