Rocket man flies too close to The Sun

The curse of the celebrity injunction appears to have struck again after Sir Elton John lost a battle to prevent The Sun reporting claims that he sexually harassed a male employee.

Sir Elton's Article 8 Right to Privacy did not outweigh principles of open justice, writes Michael Patrick
Sir Elton's Article 8 Right to Privacy did not outweigh principles of open justice, writes Michael Patrick
Until mid-2015 John Fallows had been employed to be the singer's hairdresser. On his dismissal he brought a claim against the singer in the Employment Tribunal alleging unfair dismissal and unlawful sex discrimination, including sexual misconduct. 

The allegations were strenuously denied and Sir Elton's lawyers successfully obtained an order from the tribunal preventing the media from reporting the case.

In February Sir Elton and Mr Fallows settled the claim out of court and the allegations were withdrawn. 

Instead of being the end of the matter, however, The Sun argued that the order preventing it from reporting the case no longer had any effect and made an application for it to be revoked or discharged.

Unfortunately for Sir Elton and his advisers the Employment Tribunal sided with the media last week in deciding that the case can be reported. In making its ruling the tribunal held that Sir Elton's Article 8 Right to Privacy did not outweigh the principles of open justice and the newspaper's own Article 10 Right to Freedom of Expression. 

In this respect the tribunal emphasised that the public "is to be trusted to understand that unproven allegations made and then withdrawn, are no more than that".

Whether that is true or not remains to be seen.

However, following on from the Supreme Court's recent decision in the PJS 'celebrity threesome' case, this latest decision again highlights the reputational risk of trying to gag the media.

It is unfair to criticise the legal action taken without knowing exactly what advice was given.

However, given the ease with which such information is shared on social media, it was always going to be difficult for Sir Elton and his advisers to keep the facts of this case a secret.

Before taking legal action those trying to gag the media in this way need to weigh up the risk of their case becoming a 'cause celebre'.

As always, there's a great difference between being on the front page for one day as opposed to being on the front page of many papers for several days generated not least by gifting the papers the double whammy of it being a "story they tried to gag".

That is not to say taking such legal action should be dismissed out of hand.

It can and will continue to be a useful tool, in the correct circumstances, for individuals (and organisations) wishing to protect their reputation.

For example where a claimant has a more limited public profile or where the allegations involve the claimant being harassed or blackmailed.

High profile individuals, such as Sir Elton, will also be wise to involve reputation management specialists at an early stage to ensure there is no misreporting of allegations made against them, whether by warning the media in advance of publication or by taking swift action post-publication.

In this case the allegations made by Mr Fallows were unproven and ultimately withdrawn. It would be foolish for any media organisation to suggest otherwise.

Michael Patrick is a partner at Farrer & Co

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