The ‘cash for honours’ affair was leading the news bulletins yet again last week – but this time the media frenzy revolved around a controversial injunction slapped down on the BBC.
The gagging order was intended to prevent the corporation from broadcasting a damaging exclusive. In the event, it raised concerns that the attorney general, Lord Goldsmith – who occupies a uniquely political legal position – was attempting to help Labour cover up a scandal.
And this was despite the fact that the injunction came at the request of the Metropolitan Police, rather than the Government itself.
It has since emerged that the BBC’s story was about Downing Street director of government relations Ruth Turner allegedly disputing a version of events put to her by chief party fundraiser Lord Levy.
A counterintuitive move?
The police were concerned that the story could have prejudiced their inquiry, which has already seen Turner and Levy arrested and questioned.
But, in retrospect, they could well have come to the alternative conclusion that it would have been better to let the BBC broadcast and be damned.
Weber Shandwick legal chairman Jon McLeod says the gagging order allowed the corporation ‘to do a deliberate tango round the limits of the injunction simply to make the point that it was operating under restrictions’.
Meanwhile, Levy’s lawyer criticised what he called a ‘media-style trial’, with Number 10, the police and the Crown Prosecution Service each feeling the need to deny they were the source of any leak – all of which was widely reported.
Finally, a couple of days later, The Guardian obtained similar details and fought off Scotland Yard’s attempts to gag its journalists, too.
In short, media attention could not have been much greater. For Channel Four News presenter Jon Snow, the whole saga goes to show that injunctions simply do not work. ‘People should be aware that an injunction whips up the media’s interest, and journalists will make the extra effort to break it. They are a ridiculous tool,’ he insists.
Snow interviewed Guardian editor Alan Rusbridger, who had reported on the leak to the ‘disappointment’ of Scotland Yard. ‘It was unusual,’ Snow admits. ‘He [Rusbridger] hadn’t seen an injunction, yet they were still trying to shut his paper down, asking if the van drivers [delivering the paper from the printers in London and Manchester] had mobiles. Marvellous stuff.’
The Daily Telegraph columnist and former BBC business editor Jeff Randall takes a similar view. ‘Injunctions on newspapers have the same effect as the bans the BBC used to put on pop records – they would get to number one,’ he says. ‘It makes people curious about the story so usually has the reverse effect of the one intended.
Injunctions also tend to be porous: somebody somewhere – on a newspaper or a blog – seems to trickle through it, so it’s broken and becomes fair game.’
But Max Clifford still believes injunctions can be useful for clients in certain circumstances. ‘They do work,’ he insists.
‘We had one recently about a client’s former employee trying to sell stories to national newspapers.’
Question of timing
However, while injunctions are evidently not a perfect means of preventing potentially damaging information from appearing, they can buy valuable time. ‘If it is to avoid unfortunate timing – such as a story appearing on the day of [a client’s] appearance before a select committee – then yes, injunctions work,’ says Lord Bell, chairman of Chime Communications. ‘If it’s to stop a story appearing, no, they don’t.’
With the Turner/Levy story, much of the problem for police and government was that the media were able to report so much about the affair – even before The Guardian story effectively forced the injunction to be lifted.
‘People started whispering, which meant the mosaic of the core story was out there,’ says James Thellusson, partner at Glasshouse Partnership. ‘If the goal was to suppress the story and dampen media interest, it hasn’t worked. In fact, the injunction stimulated speculation, which was damaging – to Number 10 and others.’
Five things you should know about injunctions: advice from a lawyer...
Catherine Fehler, partner at law firm Michael Simkins LLP, specialises in media litigation. She suggests PROs should consider the following points:
1. Judges will not grant a gagging injunction unless it is appropriate to do so. All the pertinent evidence will need to be available
2. Is it feasible to stop the information getting out, or is it effectively already out there? For example, are the van drivers en route to the newsagents? The courts will take into account the practical realities of the particular situation at hand
3. How will the application for an injunction be perceived, particularly where it either fails or is only partially successful? Sometimes the application itself will simply stoke up media interest and have the opposite effect to that desired.
4. Are other legal routes more appropriate? For example, is the potential publication likely to be defamatory, so that an action for libel or malicious falsehood could be considered?
5. An interim injunction will delay information getting into the public arena, and the effect of the application could be simply to defer or delay a story getting out. This could, from a PR perspective, have the negative effect of raising interest. But it could also mean that once the information can be published (because the court order has been restricted or lifted) then the interest in the story may have passed.