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