Class and Gender in Super-​Injunctions

For the past three weeks, the media has been swamped with tales of su­per­in­junc­tions. The press claim su­per­in­junc­tions cur­tail freedom of speech, while celebrities and their law­yers argue that they are ne­ces­sary to pro­tect in­di­vidual pri­vacy. In my view, the claim to pri­vacy is in­con­sistent. If it ap­plied to all in­di­viduals equally, there might be an ar­gu­ment; how­ever, in its cur­rent form the su­per­in­juc­tion has been used al­most ex­clus­ively by rich men. And it is for that reason, that we are now seeing a fight­back against it.

Two weeks ago, it was re­vealed that the BBC’s senior polit­ical journ­alist, Andrew Marr, had an af­fair and took out a su­per­in­junc­tion to cover it up or pre­vent journ­al­ists from men­tioning the story at all. Pursued by Private Eye’s Ian Hislop, Marr con­fessed all. A media mael­strom en­sued, ac­cusing Marr of hy­po­crisy for pub­licly cri­tiquing the use of the courts to pro­tect high-​profile people’s private lives, whilst doing ex­actly that him­self. Amidst the mor­al­ising about Marr’s double-​standards, how­ever, a more dis­turbing pic­ture emerged. The su­per­in­junc­tion seems to have been used (or ab­used) al­most ex­clus­ively by rich men, and they are taking them out against less-​rich women. The su­per­in­junc­tion re­veals, not only that if you’re rich enough you can gag those be­neath you, but if you’re a man-​of-​means, your brothers will pro­tect you.

A fas­cin­ating case is that of Imogen Thomas, a 28-​year-​old reality TV star and former Miss Wales, who had an af­fair with a Premier League foot­baller. As soon as the news­pa­pers got wind of the af­fair and turned up on Thomas’s door­step, the foot­baller took out an in­junc­tion, for­bid­ding her to dis­close his name or she would go to jail.

Thomas ap­peared on ITV’s ‘This Morning’ to protest the media’s treat­ment of her. She was joined on the sofa by ‘celebrity lawyer’ Nick Freeman. The presenters asked Thomas how she felt about the in­junc­tion. She re­peatedly as­serted that she had no in­ten­tion of going to the press with her story and real­ised she had “done wrong”. When asked what she thought of her name being in the press and not the man’s she said, “I didn’t want my name to be out there in the public do­main like this. I’ve been ex­ploited. I just feel really angry. I’ve taken re­spons­ib­ility for my ac­tions. I know what I done was wrong. I’ve suffered a lot, this has just been a really, really dif­fi­cult time for me.” And then she started to cry.

Freeman, the celebrity lawyer, claimed the fact that her name was in the pa­pers was Thomas’s fault. She shouldn’t have said any­thing to the press, “you were wrongly ad­vised”. But Thomas pro­tested she had no ad­visors, some­thing Freeman clearly couldn’t get his head around given that his reply to this was, again, “you were wrongly advised.”

Presenter Phillip Schofield stood up for Thomas. “Imogen is a reality TV star,” he replied, “she hasn’t got bags of money, she can’t pro­tect her­self in that kind of way, she hasn’t got a team of law­yers be­hind her looking out for her.” To which Freeman gave the most as­ton­ishing, mor­al­istic answer…

“she didn’t need any of that if she’d dealt with it in a dif­ferent way. She ob­vi­ously likes the celebrity life­style. I’m not saying there’s any­thing wrong with that, but you’re on the couch now on prime­time TV, you were on celebrity Big Brother, it may be that some people will think that’s in fact what mo­tiv­ates you to have these kind of re­la­tion­ships.”

Freeman re­veals ex­actly what’s going on here. These women are asking for it, ap­par­ently, by seeking fame and for­tune. The only reason they have re­la­tion­ships with famous, mar­ried men is for per­sonal gain, so the public is right to ex­pose and shame them. Other peoples’ opin­ions of them are what count, not what Thomas has to say for herself.

Men who seek fame and for­tune thank­fully be­come rich enough to take out su­per­in­junc­tions, so they are spared this public baiting.

By de­fending the su­per­in­junc­tion, Freeman (a white, rich man) is, by ex­ten­tion, de­fending his peers. Another member of the fra­ternity is the American con­sti­tu­tional lawyer, Phillip Bobbitt, who claims that ”pri­vacy laws main­tain a vital dis­tinc­tion between public and private worlds.” Bobbitt ar­gues that the gen­eral public has no le­git­imate in­terest in the private lives of public figures.

Bobbitt de­fends his po­s­i­tion by in­voking Machiavelli, the me­di­eval polit­ical the­orist, who ar­gued that a good Prince should adopt two types of mor­ality – one when dealing with the public in­terest and an­other in his private life (a Christian ethic). So long as the moral politi­cian acts, to the best of his know­ledge, for the be­nefit of the greater good in public af­fairs, he only has to an­swer to his own con­science (and God) in the private sphere.

This dis­tinc­tion between polit­ical and private mor­ality is not one I find re­motely per­suasive. Why should there be one ethic for public life and an­other for a politician’s private life? If a male politi­cian goes home and beats his wife or reg­u­larly en­joys hu­mi­li­ating pros­ti­tutes, I don’t really trust him to pro­mote women’s rights in his pro­fes­sional capacity.

Bobbitt in­ad­vert­ently brings us to the crux of the issue… Why would we want to de­fend the public/​private dis­tinc­tion? Because men be­long in the public sphere and women in the private. Women were al­ways meant to be seen and not heard, su­per­in­junc­tions simply re­in­force the nat­ural order of the public and private spheres. The su­per­in­junc­tion ex­ists for the public man to have his wicked ways in private and for no one ever to know. Moreover, it is not in the public’s in­terest to know be­cause it has nothing to do with public mor­ality, the man has only to an­swer to his con­science in private mat­ters, not the court of public opinion. The su­per­in­junc­tion, then, is simply a new mani­fest­a­tion of the time-​honoured miso­gyn­istic public/​private divide.

Bobbitt could re­spond that su­per­in­junc­tions don’t apply to politi­cians, but to celebrities. Surely there is no public in­terest in knowing about the private lives of celebrities – they don’t govern us, so they shouldn’t be scru­tin­ised in this way. But this re­sponse would miss the point. The su­per­in­junc­tion al­lows rich men to leg­ally pro­tect their repu­ta­tions at the ex­pense of less-​rich women. It re­in­forces the centuries-​old gender di­vide. It keeps women of the lower classes in their place com­pared to the top-​dogs – rich men. That is the problem. Whether the public has a le­git­imate reason to be in­ter­ested in foot­ballers’ or journ­al­ists’ private lives is not up to judges to de­cide. The courts cannot and should not direct the moral com­pass of the people.

Another ex­cuse that su­per­in­junc­tors use is “de­fending the chil­dren.” Marr be­lieved him­self to be the father of his girlfriend’s child, until a pa­ternity test proved oth­er­wise. He wanted to de­fend the child and his own family. The foot­baller in Imogen Thomas’s case is said to be a renowned “family man.”

But this ex­cuse is equally as lazy as the pri­vacy one. If these men truly cared about pro­tecting their chil­dren, they would either not en­gage in extra-​marital af­fairs in the first place, or dis­cuss their mis­takes openly and ma­turely with their wives and de­cide to­gether what to do; not run to the courts to wipe out any pos­sib­ility of anyone ever men­tioning it ever again.

Moreover, if the claim is that the chil­dren will be dam­aged by the fact that their fathers have cheated on their mothers, and they need to be pro­tected against this know­ledge by the courts, it seems only rich chil­dren are deemed worthy of such pro­tec­tion. Non-​rich men who have af­fairs cannot pro­tect their chil­dren in such a way. Non-​rich men’s in­dis­cre­tions are un­likely to be dragged through the news­pa­pers, but they may be dragged through the mud in their local com­munities, which their chil­dren could find equally as dam­aging and dis­tressing. The chil­dren ar­gu­ment is ne­ces­sarily time-​delimited anyway. Children grow up; a su­per­in­junc­tion is sup­posed to exist indefinitely.

It should be noted, that not all of the women are straight­for­wardly vic­tim­ized by su­per­in­junc­tions. Helen Wood, a pros­ti­tute who slept with Wayne Rooney and has a su­per­in­junc­tion against her by a famous mar­ried actor, is trying to cir­cum­vent the law by pub­lishing a kiss-​and-​tell auto­bi­o­graphy abroad (ac­cording to the Daily Mail). As her pub­li­cist, Max Clifford, puts it, “She is a lady trying to make the most of her ex­per­i­ences fin­an­cially.” Wood claims to have slept with not just this actor, but an MP, two soap stars, a judge and a high-​profile po­lice of­ficer, and has since cast as­per­sions on their sexual prowess.

While Wood’s be­ha­viour is hardly laud­able (if true), maybe she is simply trying to make it in a man’s world. If they ex­ploit her, why shouldn’t she ex­ploit them? Men have got away with using pros­ti­tutes be­hind their wives’ backs for cen­turies be­cause the pros­ti­tutes kept quiet. Wood is breaking this code of com­pli­city. It seems she is turning the tables of ex­ploit­a­tion – you can buy my body but I’ll tell the world and be­come rich at your ex­pense. Wood is demon­strating that not all women are vic­tims in this; she is fighting back.

The su­per­in­junc­tion, of course, at­tempts to put a stop to this. It pre­vents the women from talking about the story, and it pre­vents journ­al­ists from al­luding to the ex­ist­ence of the story. If women prostitutes/​mistresses can’t be trusted to keep their end of the bar­gain any­more, if they are pre­pared to fight back rather than ac­qui­esce, rich men can turn to that con­venient old-​boys club, better known as ‘the law.’ As Julie Burchill put it, “If there is a law which is used by one gender only, we should surely be very sus­pi­cious of it.”

The Fightback

Supporters of pri­vacy laws point out that su­per­in­junc­tions were, in fact, first in­tro­duced to pro­tect no­torious crim­inals, whose lives were in danger if their iden­tities were re­vealed, such as Jamie Bulger’s killers. Privacy laws can also be used to pro­tect vic­tims of crimes such as black­mail, rape, and pae­do­philia, or to pro­tect vul­ner­able adults. In other words, there may be good reasons for a court to pro­tect an individual’s anonymity. Attacking the su­per­in­junc­tion, as the press and blo­go­sphere have been doing, could be dam­aging in the long run.

But I would sug­gest, that the issue is not with the ex­ist­ence of the law it­self, but how the law is being ap­plied.

The fact that it is being used by rich, powerful (male) parties, to si­lence less rich, less powerful (fe­male) parties, or by cor­por­a­tions pre­venting the vic­tims, or those cam­paigning on their be­half, speaking out about cor­porate ab­uses (as in the case of Trafigura), sug­gests there is some­thing at fault in the ap­plic­a­tion of superinjunctions.

Twitter was alight with ac­cus­a­tions last week, be­cause people are tired of being trampled on by rich men. Why does one rule exist for them and an­other for everyone else? Their pri­vacy shouldn’t be bought; if legal pro­tec­tion of pri­vacy is avail­able, it should be avail­able for everyone. In the era of so­cial media and net­working, in­form­a­tion travels fast and many more people have ac­cess to it. Individuals on­line are using their people-​power to stick two-​fingers up to the rich and famous that think they can gag them.

In keeping with the two-​fingers re­sponse to any­thing, their tac­tics and ap­proach have not been very soph­ist­ic­ated. Anonymous tweeters have wrongly al­leged that Jeremy Clarkson had taken out a su­per­in­junc­tion to pre­vent pub­lic­a­tion of “in­timate pho­to­graphs” of him­self and Khan, and they ac­cused Gabby Logan of an af­fair with foot­baller Alan Shearer. The in­di­viduals ap­pear to be stabbing in the dark in an at­tempt to pro­voke and scare the ruling classes.

I would sug­gest, there­fore, that in ab­using their priv­ileges of wealth and status, these men have left them­selves open to a whole new raft of public hu­mi­li­ation. If their af­fairs had come out in the news, of course it would have been up­set­ting for the parties in­volved, but the media would have quickly moved on to the next story. It’s the use of priv­ilege, money, status and the courts (a sup­posedly neutral in­stru­ment of justice) that has riled many people, and it’s going to take a lot more time for that to blow over. It could result in more wrongful ac­cus­a­tions and mud­slinging, harming many more people than were ori­gin­ally in­volved. In other words, su­per­in­junc­tions have pro­voked a class war.

It’s in­ter­esting that two women were picked out for wrongful ac­cus­a­tions. We don’t know yet whether any in­di­vidual women have taken out su­per­in­junc­tions. But this could be an in­dic­a­tion that pat­ri­archy out­lasts even class dif­fer­ence. The ac­cusers can’t seem to ac­cept that this is a gendered, as well as classist, battle. They want to prove that rich women are also in­volved. It re­mains to be seen whether this is the case.

So it is the ap­plic­a­tion of su­per­in­junc­tions, not the law it­self that is causing such agit­a­tion. Granting su­per­in­junc­tions to cover up a rich man’s extra-​marital af­fairs is not le­git­imate, es­pe­cially when it leaves the woman ex­posed to public scorn. Superinjunctions, when used in these cir­cum­stances, make a mockery of the formal, legal equality women, men, rich and poor sup­posedly all enjoy.

Maeve Mckeown is a Political Theory PhD Student at University College London and a New Left Project con­trib­uting editor.

Thanks to NLP

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