Last week, Bloomberg, The Independent, Business Insider and a handful of other news organisations all deleted from their websites a story that a rich family did not want published.
I can’t tell you why it was deleted or who the story was about, because of a court order from a judge in London ruling that the facts be kept under seal.
I can, however, tell you that the story was accurate, truthful, and based on events that took place in public, at taxpayers’ expense. Every word of it was on the record. The rich family did not dispute the facts in the story, which described the ostentatious ways they spent their vast fortune. They simply wanted to conduct they affairs in private, and hired a law firm to make it so. “It’s a total mess,” a source close to the case told me. “And another example of the judiciary rolling over when the rich throw their toys out the pram.” I’d like to name my source but the case prevents me.
The judge in the case initially opened his court to the press and held hearings on the matter in public. Days later, the judge changed his mind, setting in motion the Orwellian process of having the world’s news media delete truthful stories from their sites. It may be that the rich family had a good case. Maybe their right to privacy did trump our right to publish what they were doing. But you won’t get to know whether the rich family really were the victims. You won’t get to know whether the judge was competent or incompetent in his handling of the case. And you won’t get to learn whether UK courts handle rich people differently than regular folk — even though the staggering wealth of the family, and the way the courts deal with that wealth, was an issue that the judge remarked on in his ruling.
It’s hard to say how common the disappearance of facts from the public record is. By their nature, these things take place in secret and news organisations don’t like to advertise that their lawyers have advised that stories be deleted. But it happens a lot.
At Business Insider UK, we sometimes receive letters at a rate of about one per week from a rich person’s solicitor insisting that a story we published be deleted. Often, the person is an East European oligarch who obviously knows that UK law is feeble when it comes to freedom of the press. (For comparison, at Business Insider’s HQ in New York, we received legal requests for deletions from Americans less frequently. That’s because US law leans heavily in favour of your right to publish true facts.) We resist these demands, and employ very expensive lawyers to aid that fight. But sometimes we lose.
None of this is news in the UK, of course. The laws have been this way for a long time. Particularly in criminal cases, the law favours trials for defendants that are untainted by media coverage, even when the coverage is factually accurate. The result is that matters of public record — things that were reported weeks, months, and years ago — suddenly stop being “facts” that can be known.
In one recent example, prosecutors successfully ordered the removal of a man’s name from a news story even though the only reason his name was in the story was because prosecutors had named him, on the record, as a co-defendant in a case weeks before. In the intervening period, those same prosecutors brought charges against him — and then wanted the record of his existence to disappear. The judge in the case agreed.
There are three important consequences of this:
- It creates an elite class of lawyers and media staff who do actually know everything that’s going on, they just cannot share it. An example on my desk right now is a court order forbidding the press to name a very famous man who was arrested in connection with a very famous set of crimes. His connection to these crimes is well-documented, and a matter of public record. But I cannot tell you his name.
- It prevents the public from easily finding out whether prosecutors, courts and judges administer justice competently or not.The law basically discriminates against you if you are not connected to the UK’s legal elite. We all know what’s really going on. But the law prevents you, the non-insider, from knowing. It’s just not fair.
- It means that there is no such thing as free speech in Britain, only freedom of opinion. Freedom of speech in the UK has never been a legal right, it has only held the status of a common law tradition. Article 10 of the European Human Rights Convention has two sections on free speech. The first part guarantees free speech, but the second part lists restrictions on that right. The list of restrictions is longer than the text of the right itself.
That last part is especially sad, because an opinion is a poor substitute for a fact. You can’t really form an opinion unless you know the facts, and the law militates against us bringing you facts.* So in the case of the rich family vs. the press, I can tell you that I think the judge was wrong to change his mind, that the family was probably wasting the court’s time and taxpayers’ money, and that the public ought to know how the One-Per cent behave when they are litigating.
I just can’t tell you exactly what happened.
*Britain’s tabloid press has behaved appallingly in the past — via phone hacking, bribery, and excessive invasions of privacy — and that has not helped those of us who want to do serious journalism.
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