A British billionaire tycoon flexed the might of his £2 billion wealth by attempting to block a national newspaper from publishing allegations of “sexual harassment and racial abuse of staff.”
Philip Green — the owner of Topshop — spent £500,000 on legal fees to obtain an interim injunction from the Court of Appeal preventing The Telegraph from naming him. Just 50 hours after the ruling, parliament intervened. It took 28 seconds for Lord Hain — a peer in the House of Lords — to name the alleged man at the centre of the scandal. Green has “categorically and wholly” denied the allegations.
This story raised questions about the weaponisation of NDAs and injunctions in the #MeToo movement — and the efficacy of such legal tools in the internet and social media age.
Had it not been for — which grants “legal immunities” to politicians so they can “perform their duties” without outside interference — Green’s name may have never been revealed. Green’s case was the story of one of the UK’s richest, most powerful men using non-disclosure agreements and an injunction to attempt to shield himself from reaping the consequences of allegations the Court of Appeal called “discreditable conduct.”
His case — a tangled web of “substantial payouts” and NDAs affecting five complainants — raised a bigger question about the weaponisation of injunctions and NDAs in the #MeToo movement: How many other stories had been gagged by injunctions, super-injunctions, and NDAs? And, is the exploitation of these legal tools hindering the #MeToo movement?
How many other stories had been gagged by injunctions, super-injunctions, and NDAs?
The NDA, which is most often used by companies to protect their intellectual property and trade secrets, has become the go-to weapon for the rich, famous, and highly powerful embroiled in the #MeToo movement. Ronan Farrow reported last year that Harvey Weinstein “used money from his [Weinstein’s] brother and elaborate legal agreements to hide allegations of predation for decades.” Injunctions, however, are different to NDAs. They are judicial orders preventing parties from doing specific acts. In Philip Green’s case, an injunction was used to enforce the NDAs and to prevent a third party — a newspaper — from disclosing that information. (It’s worth noting that in the case of Philip Green, two of the complainants did not want the information being made public.)
So, injunctions, Non-Disclosure Agreements and #MeToo.
A few pointers to note that you may have missed amongst all the coverage of the Telegraph’s battle to publish “confidential” details of complaints of misconduct against a prominent businessman. [THREAD]
— The Secret Barrister (@BarristerSecret) October 24, 2018
The Secret Barrister, an anonymous blogger and barrister practising law in the courts of England and Wales, said it’s “inevitable” that #MeToo stories will have been “suppressed as a result of NDAs.” “The scope is difficult to estimate, but NDAs are not uncommon, and many of the allegations giving rise to the dispute will be sexual in nature,” the blogger told Mashable. The government’s Women and Equalities Select Committee concluded that NDAs are being abused and use of them needs to be curtailed. Per Sam Smethers, chief executive of the Fawcett Society, NDAs are “a symptom of a bigger problem – the balance of power in the workplace and the culture of cover-up. All the cards are still stacked in Green’s favour. It’s time to redress the balance.”
While it’s well-known that NDAs are widely used to silence survivors of sexual harassment, assault, and misconduct, it is impossible to estimate the extent to which injunctions have been used to stifle these stories because of the very nature of injunctions. “As far as whether injunctions will have been sought in relation to those, we don’t know,” said the Secret Barrister. “Many injunctions are granted with an order prohibiting publication of the fact that there is an injunction (this is the so-called “super injunction”), so again, estimating the prevalence is difficult.”
“It’s not just that they can’t publish a story, they also can’t talk about the fact that they can’t publish a story.”
A super-injunction, simply put, is an injunction on top of an injunction. It means that not only is there an injunction in place, but there’s also an injunction preventing anyone from reporting on the fact that an injunction has been granted. As Professor Lisa Webley, Deputy Head of Birmingham Law School, puts it: “It’s not just that they can’t publish a story, they also can’t talk about the fact that they can’t publish a story.”
Why do super-injunctions exist? According to Professor Ian Walden, Head of the Centre for Commercial Law Studies at Queen Mary University of London, “the publicity attendant on an injunction tells the world that something’s going on.” So, if you “don’t want the world to potentially know something’s going on, you get an injunction against speaking about the fact that there’s an injunction.”
“Is it possible that there are a load of sexual harassment #MeToo claims out there that have been hit with super-injunctions? Yes it’s possible. It’s possible,” Webley told Mashable. She added that in order for the super-injunction to have succeeded in the suppression of a #MeToo claim, there would “have to be a series of NDAs out there” that complainants would not have “tried to subvert.” And, on top of the super-injunction, “it would have to be that the social media sphere has not started talking about in in such a way that the injunction would have to be lifted.” That’s because, per Webley, an injunction only stays in place “for as long as it is useful.” “Once the information is out and about on Twitter and social media, the injunction is going to get lifted because a court won’t keep an injunction in place in an absurd situation,” Webley added.
In the UK, injunctions are more common purely because of the way that privacy is weighted in the law. In the U.S., the right to freedom of expression is a “constitutionally protected right,” per Webley. “That means free speech will always trump privacy in the U.S.” In a UK context, however, it’s a different story entirely. “We apply our rights and case law from the European Convention on Human Rights,” Webley said. “Two articles are relevant in the European Convention — freedom of expression (Article 10) and the right to private life, one’s home, and one’s correspondence (article 8). Those two rights are on an equal footing in the European Convention.”
So, how do we ensure that the UK chapter of the #MeToo movement is not hampered by these legal tools favoured by those with the means to pay for them? According to Walden, injunctions are problematic because they’re “only applicable on a national basis” so even if you were to obtain an injunction it wouldn’t be “applicable in Scotland or on the internet.” “In the age of the internet it sneaks out,” Walden continued. According to legal publication JDSupra, “in today’s world of internet, social media, and anonymous leaks to the press, NDAs can be difficult to enforce.”
The power of social media and the internet can be harnessed to get the message out when survivors and the media are legally prevented from speaking out.
Media organisations can work around injunctions, says Webley, by “drip feeding enough information about the fact that there’s an injunction” in order to “get people talking and get the information half out there.” Once there’s enough information out there, they can then go back to court to get the injunction lifted to run the story.
The power of social media and the internet can be harnessed to get the message out when survivors and the media are legally prevented from speaking out. And if you use social media to lobby politicians to use their parliamentary privilege, then stories that are in the public interest could be brought to light.
Webley feels that it’s important that our focus in the #MeToo movement shouldn’t always be on the “very powerful men who are rich and famous” whose allegations we’re more likely to see reported in the press. “I would suggest that first of all much of the sexual harassment that happens occurs amongst people who do not have access to fancy legal teams and a load of money behind them,” she said. “One of the challenges about the #MeToo movement is that we tend to always be discussing it in the context of very high-profile cases. Those are really important, but there are relatively few very high profile people out there and there are an awful lot of those of us who are relatively ordinary.”
The harassment that’s endured by normal people in everyday life isn’t likely to be reported on by the media — and it’s these cases that are just as deserving of our attention. “Those stories won’t make it onto front page of tabloids and broadsheets, but they’ll be in local papers, they’ll be all over Facebook, Twitter, all over local message boards. They will be discussed amongst people,” Webley added.
Parliament has the power to pass laws to restrict the use of NDAs and injunctions, and we can hope and pray that they do take legislative action to do so. But in the meantime, the burden falls to us everyday citizens to use the most powerful tool we have access to — social media. Through social media we can put pressure on politicians to exercise their legal immunity to name those accused. Through social media, people can render injunctions redundant. Through social media we can amplify the stories of both everyday and high-profile people who have survived harassment and assault. That way, the truth will out.