By Roger Pearson
The ruling in the Beckham nanny case is one which should sound alarm bells generally for the media.
While the judge refused to impose a gag in this case preventing
further reference to the revelations which had already been made, he
left the door open for just this sort of order to be made, depending on
the circumstances, in future cases.
Nanny Abbie Gibson had
agreed, without the need for a courtroom battle, not to make any
further revelations pending the outcome of a full hearing over the
application by the Beckhams for a court order against her, or further
order by the court.
Related
However, legal argument did not end with
Gibson’s agreement. There was dispute about other terms in the order
sought by the Beckhams.
One of those terms was aimed at gagging
Gibson, not only from making further revelations but also preventing
her from repeating or commenting on what she had already said.
That
move by the Beckhams was branded by Gibson’s counsel, Mark Warby QC, as
a bid to “shut the stable door after the horse had bolted” and Mr
Justice Eady refused the request for such an order.
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He did not ban Gibson from repeating what had already been made public and from commenting on it.
“One
has to decide what has entered the public domain already. Here it seems
to me the publication of the material has taken place on such a wide
scale that it would be futile to try to prevent further circulation,”
said the judge. However, while that may sound heartening to the media,
there was a sting in his comments.
He prefaced his decision that
the ban sought would in the circumstances be “futile” by making it
clear that this would not necessarily always be the case when
injunctions of this nature were sought.
“It is not necessarily
the case that because personal information is in the public domain it
is for all purposes beyond the law’s protection,” he said.
In
other words, while in the case of the Beckhams the dissemination of
what Gibson said had been so wide that, in the judge’s words, it would
be “futile” to put a gag on what was already out in the public domain,
this need not necessarily be so in every case.
The judge’s
comments made it clear that if there has been less than the blanket
coverage attracted in the case of the Beckhams then an injunction of
the type sought could possibly be granted, banning not only publication
of further information, but also further publication of the information
which has already been put in the public domain.
Effect of Human Rights Act
‘MORE DIFFICULT TO GET AN INJUNCTION’
Gibson’s lawyer Niri Shan, from Taylor Wessing, said the decision to
reject the Beckhams’ attempts to gag their nanny was good news for the
press.
He said: “Both judges have taken note of Section 12 of the Human
Rights Act, which talks about balancing the interests of free speech
against privacy when deciding whether or not to grant an injunction.”
He
said the decision underlined the precedent set by the Liverpool Echo
versus Cream Holdings at the House of Lords in October last year. After
a two-year legal fight the Echo proved that the 1998 Human Rights Act
made it much harder for complainants to obtain injunctions banning
publication in breach of confidence cases.
He said: “It’s much more difficult to get an injunction now post- Human Rights Act and Cream Holdings”
Don’t write off confidentiality clauses
By Duncan Lamont
Most lawyers regard this case as not (as yet) establishing any new
precedent or principle. The judge came to his conclusion that Saturday
evening, in difficult circumstances, based upon the limited information
that could be made available to him and his balancing of the principles
of privacy and the freedom of expression.
One would have expected him to have given greater weight to the
confidentiality agreement, but one suspects that this was not the trump
card it would have seemed because of the material already in the public
domain rather than claims of a legitimate public interest.
Perhaps “publish and be damned”applied because this is precisely what the Beckhams, over the years, have done themselves.
This
was well known to the News of the World, and therefore the judge, and
this is perhaps the lesson to be learnt by editors when considering
when to run such stories and, if news leaks out, whether to defend
injunction applications.
David Beckham criticised his exnanny for “selling stories for money”.
The
News of the World knew that they had paid him £450,000 to serialise his
autobiography, My Side, in which he presented his wife as being central
to his success and he chose to talk of family and fame – not just
football.
It is worth any journalist planning to publish in
breach of a confidentialityagreement to have material already in the
public domain at their fingertips so that it can be shown to a judge or
even read to him or her down a phone line.
The public interest
argument can be harder to run, save in the most unusual circumstances,
than showing that the material (or the relevant and most important bits
of it) are already in the public domain.
But before the media
gets too confident, Lady Archer was successful against her
story-selling PA at trial, and the Beckhams may have the last laugh if
they pursue the case. No injunction does not mean that confidentiality
clauses do not still have a bite.
Duncan Lamont is a partner in the Media Group at City legal practice Charles Russell
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