Privacy on Parade



Suddenly, today, it was almost the 1980s all over again.

For those with good memories, gagging orders - though well known to journalists and newspaper editors – last came to the general attention of the public, to such a spectacular degree, under Mrs Thatcher’s government via the notorious Spycatcher case.

Spycatcher, the memoirs of ex-MI5 officer Peter Wright, caused a sensation in 1987/88, not so much for its allegations – which were serious enough – but more so for the lengths to which the then Conservative government sought to block the revelations.

Spycatcher was banned in England, but in the pre-internet days, (did they really exist?), was available in Scotland and overseas.

It detailed the author’s work in seeking to discover a Soviet mole in MI5, and asserted that the said mole was a former MI5 Director General; it also described people who might have or might not have been the mole; and rendered a history of MI5 by chronicling its principal officers.

It also detailed allegations of an MI6 plot to assassinate President Nasser during the Suez Crisis; of a joint MI5-CIA plotting against British Prime Minister Harold Wilson (secretly accused of being a KGB agent by the Soviet defector Anatoliy Golitsyn); and of MI5’s eavesdropping on high-level Commonwealth conferences.

Wright examined the techniques of intelligence services, exposed their ethics (speculative until that time), notably their 11th Commandment: ‘Thou shalt not get caught’, and explained many MI5 covert electronic technologies.

Writing Spycatcher upon retiring from MI5 and while residing in Tasmania, Wright first attempted publication in 1985.

The British government immediately acted to ban Spycatcher in the UK. Since the ruling was obtained in an English court, however, the book continued to be available legally in Scotland, as well as overseas. It also attempted halting the book's Australian publication, but lost that action in 1987; it appealed but again lost in June 1988.

English newspapers attempting proper reportage of Spycatcher's principal allegations were served gag orders; on persisting, they were tried for contempt of court, although the charges were eventually dropped.

Throughout all this, the book continued to be sold in Scotland; in fact, Scottish newspapers were not subject to any English gag order, and continued to report on the affair.

Quantities of the book easily reached English purchasers from Scotland, while other copies were smuggled into England from Australia and elsewhere.

In mid-1987, a High Court judge lifted the ban on English newspaper reportage on the book, but, in late July, the Law Lords again barred reportage of Wright's allegations. Eventually, in 1988, the book was cleared for legitimate sale when the Law Lords acknowledged that overseas publication meant it contained no secrets.

The key difference between then and now, is of course the rise of the internet and of the so-called social networks.

Given the events of today - in which an MP’s convenient (or not) use of parliamentary privilege to name the footballer whose alleged sexual transgressions have been the subject of endless speculation on the social networks, (but not, crucially, in the newspapers, much to their chagrin, courtesy of a ‘super injunction’)  -  imagine what would have happened if such techno flag-waving was around in 1988?

Newspapers might act dubiously now and again, but their sense of indignation at there, seemingly,  being one law for one, one for another,  is wholly understandable; especially when they are witnessing the social networks  - on the face of it, threats to their very existence - dance a merry jig around them.

If you like, unfettered Mercury dancing around the muzzled old bear, while the slow ass of the law looks on.

Just as the Government couldn’t stop the steady trickle of copies of Spycatcher which entered England from Scotland and abroad, it’s unlikely the tidal wave of cyber gossip which is now so ubiquitous will ever be effectively stopped.

Governments (and individuals) – celebrities in this case - might be able to lower the portcullis to keep information from getting out of the castle.

But when not only the walls have ears, but when also the mob at the gates is not only carrying torches, but also effectively bawling through techno-megaphones for as far as the eye can see, measures to silence them, one suspects, could be about as effective as Dad’s Army’s Sgt Wilson would be in controlling a riot in Bedlam.

Add to that the fact that very people celebrities are trying to stop private information reaching, are the very people that elevated them to the castle status in any case, after lapping up fan gossip fed to them by publicists and agents, you could be forgiven for wondering what is actually meant by 'celebrity privacy', and whether it is the ultimate oxymoron.The never-ending staircase paintings of M C Escher spring to mind.

At the time, many might have argued that Spycatcher and its revelations were worthy of a gag; but the key issue is not the subject of such orders but how one form of media can be gagged and not the other.

Many might not like the roaring lion of Fleet Street, but it largely obeys ‘established’  rules . By comparison, seemingly able to flout libel, contempt and court injunctions, social networks are in danger of becoming the feral Tasmanian Devil of the new media world.

Whatever the outcome, and whether we are actually bothered which sterling-fuelled footballer has had an affair with whom, it’s just possible that today’s latest storm in a media teacup might mark an important watershed in the already battle-scarred media landscape.

If nothing else, it underlines the significance of the new networks on all levels.

Super injunctions are just one form of a 'gagging order'.

In England and Wales, a super-injunction is an order in which the press is prohibited from reporting even the existence of the injunction, or any details of it.

But parliamentary privilege protects statements which would otherwise be held to be in contempt of court; by long legal tradition, parliamentary proceedings may be reported without restriction. In theory, the recent revelations in parliament should act as a wrecking ball to the original super-injunction. But at the time of writing, it remains in place.

The term "hyper-injunction" has also been used to describe an injunction similar to a super injunction but one which also includes an order that the injunction must not be discussed with members of Parliament, journalists or lawyers.

[I'm waiting for a tetra-injunction to be brought out against this blog, banning me from banning me suggesting that social networks should also be subject to court bans....].

The balance between an individual’s right to privacy – and the Government’s right to keep things private – against the public’s need to know is of course the fulcrum.

Alongside the current legal action being sought by the hounded landlord in the Joanna Yeates murder case, and the Attorney General’s calls for a review in light of such, the events of today will only bolster newspapers’ cause even further.

But one can’t help suspect that in the case of celebrity, even if their own self-imposed injunctions are over-turned or transgressed – that they somehow hold the double-headed coin in the curious bunco booth at the heart of the media circus.

As for that same media circus, the candy-floss of which we all sample now and again, however sickly-sweet, its gaudy passing show will just keep on marching, however many banana-skins we might throw, on which it might occasionally -  seemingly – skid.

Perhaps the greatest farce occurred on the BBC’s Newsnight tonight when one journalist asked if they could still name the footballer in question [and in doing so, named him] while acknowledging the injunction banning the revelation of his name was still technically in place.

Perhaps Dad’s Army had it right after all….

 “Don’t Tell Him, Pike…”


Need to Know Basis....

'Sir Humphrey: Now go in there and inform me of their conversation.
Bernard Woolley: I’m not sure I can do that, Sir Humphrey. It might be confidential.
Sir Humphrey: Bernard, the matter at issue is the defence of the realm and the stability of the government.
Bernard Woolley: But you only need to know things on a need-to-know basis.
Sir Humphrey: I need to know everything! How else can I judge whether or not I need to know it?
Bernard Woolley: So that means you need to know things even when you don’t need to know. You need to know them not because you need to know them, but because you need to know whether or not you need to know. And if you don’t need to know you still need to know, so that you know there is no need to know.