It is a Sunday afternoon – preferably before an episode of Robot Wars. The dogs are already asleep in the armchair and the children are playing Mine Craft. You put your feet up on the sofa, squint and open the Sun on Sunday. Roast beef and Yorkshire, a vegan alternative or just apple sauce, followed by a Mary Berry pudding are driven home, as it were, by a cup of mahogany-brown tea, have put you in just the right mood.
Your electronic cigarette is glowing sweetly, the sofa cushions are soft underneath you, the central heating has just come on, the airwick stagnant. In these blissful circumstances, what is it that you want to read about?
Naturally about a sex scandal. But what kind of sex scandal? If one examines the sex scandals that have given the most pleasure to the British public, the sex scandal whose story is known in its general outline to almost everyone and which have been made into TV docudramas and re-hashed over and over again by the Sunday papers, one finds a fairly strong resemblance running through the great number of them…those that have stood the test of time or are likely to are the following: Ryan Giggs and the sister-in-law, John Terry and the girl next door, David Beckham and the Senorita, Jude Law and the Nanny, Wayne Rooney and the Granny, Jeffrey Archer and the prostitute, Max Mosley and the prostitutes, David Mellor and the Chelsea top, Brooks Newmark and the paisley bottom, Ron Davis and the badger.
With all this in mind, one can construct what would be, from the spooky spectre of the defunct News of the World reader’s point of view, the ‘perfect’ sex scandal. The central figure, ideally, must be person who has hitherto presented an impeccable image of themselves as, in most cases, a ‘family man’. This is a quality expected from footballers and MPs as can be evidenced by their commercial endorsements (the former) and their campaign leaflets (the latter). All the better if there are a few children involved, and those children have, at least once, been photographed in the papers, with any luck, in the company of their parents in one of those Daily Mail side-bar scenarios such as ‘relaxing in the park’ or ‘enjoying a ski holiday’.
The partner of the family man will be heartbroken, and have a clean record in terms of any sexually deviate practices themselves (such as having been married before…) and will be invited (hundreds of times) to ‘tell their side of the story’. The Exposer will be motivated solely by a desire to exercise the freedom of speech that the British fought wars and died to protect. Often in a style of exaggerated reluctance, Sunday red tops report the scandal, taking great pains to self-censor where necessary in order to protect the public from finding out about any sex acts ‘too revolting to describe in a family newspaper’. If possible, of course, there should at least be something unusual in terms of the sex itself. Rampant (that is, sex more than once in a calendar week), possibly with another person present to watch, play or assist, and in fancy dress or a colourful piece of underwear.
Should there be any drugs involved, these should be mainstream and not supplied by the party selling the story to the newspaper under any circumstances. Most importantly, it must engender moral outrage, for without moral outrage there may be an argument that the racy revelations are not in the public interest. And without such public interest in the mix, the family man might do what the Sun on Sunday and the Mail consider an even greater crime than seducing the nanny – successfully apply for an anonymised privacy injunction.
A very brief potted history of media matters that does not do justice to the complexities of the arguments but serves as a make shift backdrop for the purposes of this article. The recent injunction row, PJS v NGN is in many ways a sequel to the 2011 blockbuster – CBT v NGN and Thomas – set in the Super Injunction Spring, the story of Imogen Thomas, a former Miss Wales who had an affair with the premier league footballer**. She and The Sun were consequently injuncted on the basis that identifying the footballer would be a breach of his privacy and the proceedings were anonymised to protect his identity. A tabloid game of ‘who-dun-it’ ensued, involving clues care of jigsaw identification.
This is where the newspaper gives transparent hints as to the rogue they wish to name to shame. The wild west Web leaked on and on and then in (what he claimed) was a heroic gesture for the world at large, John Hemming MP named Ryan Giggs in Parliament under the protective cloak of privilege (as opposed to the fig leaf of Article 10 where the Sun had been hiding). The long held convention that Parliamentarians should not use Parliamentary privilege to break court orders came thundering down as the Speaker called for Order. It would not be for the last time.
Giggs v NGN is a close relative of PJS v NGN in terms of the specific matters that both these cases raised. Firstly, who and in what circumstances should have the right to privacy? How should it be balanced with Freedom of Speech and secondly, even in circumstances where there is a right to privacy, should the information become widely available online or in other jurisdictions (in the Giggs case the Scottish Herald, in PJS a US weekly celebrity gossip rag) would this not mean that the law was effectively ineffective (or ‘an ass’ as it was later labelled by the Mail?). The debate raged on and was played out by the tabloids as a protest against spoilt celebrities who could afford expensive lawyers and were eroding their genuine public interest journalism.
Questions were raised as to whether the birth of the internet heralded the death of injunction (what was the most pointless – the story or the injunction? A balancing act of what is least in the public interest). In 2010 a Super Injunctions committee had been formed, chaired by John Whittingdale MP. He later went on to chair the Select Committee for Culture, Media and Sport, and then became Culture Secretary, but prior to this had a relationship with a woman who turned out to be a practicing professional dominatrix. Mr Whittingdale claimed that this was the reason why he ended the affair (although the Spectator mischievously suggested that perhaps she had found out that he was a Conservative MP and dumped him immediately)***. The Super Injunctions Committee had been set up following concerns by the media that they were being served with gagging orders that did not provide them with information related to what had actually been said in Court to persuade the judges, in without notice, private hearings, to grant these Orders in the first place. They considered that a new status quo had been created by judges who made Orders in secret courts, that would have to be expensively defended, and that this was a derogation of the principals of Open Justice.
However, at the same time as all this was going on, something else was brewing which was certainly in the public interest and that tabloids certainly did not rush to report. This was the phone hacking scandal, which, following the tragic revelation that the murdered schoolgirl Milly Dowler’s mobile had been hacked, famously led to the Leveson Inquiry and by the end of 2012, editors, journalists, celebrities and members of the public were taking part in what seemed to be a watershed moment for those who had campaigned for a fairer independent press. The Leveson Report and its recommendations were published in November 2012. The Royal Charter is yet to be implemented.
So, to the latest instalment. PJS v NGN is about an individual in the entertainment business who partook with their partner’s consent (also in the entertainment business) in a threesome. The couple involved in the threesome wished to sell their story in the Sun. They were prevented from doing so by an interim injunction, on the basis there was no public interest in the story by the Court of Appeal in January 2016. The Sun, who had initially claimed that they wished to expose the prevailing hypocrisy of the claimant, who they argued had branded themselves as a monogamous couple, dropped this argument all together after the story was published by the US rag. The mainstay of the arguments became about whether the fact that the identity of PJS was no longer a secret should erode PJS’s privacy rights which, by that point, both sides agreed were engaged.
The case was taken all the way to the Supreme Court, who overruled the Court of Appeal’s decision and the interim injunction will now remain in place until trial. Lord Mance said, in upholding the interim injunction, ‘There is no public interest (however much it may be of interest to some members of the public) in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well known; and there is no right to invade privacy by publishing them’. The Sun, however, said that that ‘free speech [has] drowned in a paddling pool of olive oil aided by celeb and 3-way romp loving partner, abetted by four old duffer judges ignoring the internet’. Lord Toulson (dissenting), presumably having escaped allegations of dufferism in the process said ‘it will not go away’****. Lord Neuberger pointed out that “the heavens wouldn’t fall at [their] decision”. Whether the Sun actually takes this to trial has turned into a game of Chicken-Licken.
So what was it about the PJS’s story that made the Sun want to spend an inordinate amount of money on legal fees to earn the right to publish this story? They had John Whittingdale’s story but, rightly many would say, chose not to publish it. If we go back to the perfect sex scandal we can see that the PJS story falls precisely into those stories that the Sun felt the British public would enjoy the most (whereas the Whittingdale story seems to miss the boat). Mr Whittingdale was a single man, so there was no relationship hypocrisy argument to inflate the moral outrage and thus the public interest, no family values leaflet or branding to expose as being disingenuous. He is a public figure, but not one who is of great interest to the public at large (although that has never stopped stories about politicians who nobody has ever heard of until they get caught sending a dodgy text message).
There were photographs available of his former girlfriend in her work clothes, but perhaps nowadays, in the brave new world of the selfie, such images are part of the norm? But the moral outrage that the newspapers complained of this time, was the outrageous suggestion that they had rejected this story because they had been selective about who they choose to feature in their sex scandals. PJS, on the other hand, caused no such debate at the Editor’s conference. PJS is an entertainer that the public are very interested in. PJS has children. PJS is married. PJS’s children had been photographed. PJS had some amusing props. Tick. Tick. Tick. Many people knew or could find out who PJS was anyway. So why stop the papers from selling their story? It met the editorial criteria after all…Because, actually, nobody was more scandalised then the very newspapers who wished to publish the story in the first place. In truth, the PJS story in itself does not matter. It is the precedent that has been set that terrifies the tabloids the most.
What will become of them now that it seems that the great English Sex Scandal is in decline? What will they publish in the future? As the sun sets on the sex scandal, and the public genuinely seem to be having a ‘not tonight darling’ moment, preferring a snooze after Sunday Lunch rather than to read all about it, the tabloids no longer reign so powerful in terms of their ability to make or break a person…marriage…a career…an election.