THE right of a rich man to buy the silence of employees who say he abused them is more important than the freedom of the Press to report allegations of sexual harassment and racial abuse.
That is what three top British judges have effectively just ruled.
They imposed an injunction on the Daily Telegraph, banning the newspaper from revealing alleged abuse of staff by a leading businessman.
None of us is even allowed to name the man, known in court only as ABC.
The excuse given for this gagging order is that the businessman signed controversial non-disclosure agreements (NDAs) with five former employees, making what the court called “substantial payments” in relation to allegations of “discreditable conduct”.
In other words, he paid them to keep schtum.
The Telegraph has spent eight months investigating allegations of “bullying, intimidation and sexual harassment” made against the tycoon.
But the Court of Appeal has now banned it from reporting the story, because it could break the NDAs and be a breach of confidence.
The case could seriously affect workplace relations and strike another blow against freedom of the Press.
NDAs were originally used for legitimate business purposes, to protect a company’s commercial secrets when an employee left.
Now they are being deployed as rich men’s personal weapons, to protect powerful individuals such as fallen Hollywood mogul Harvey Weinstein from allegations of harassment and abuse.
The #MeToo movement took off in America with Press disclosure of how NDAs were being used and abused.
What will the workplace implications be of the UK court ruling that an NDA means nobody can discuss such allegations?
Campaigners say that it could be a licence for any “handsy” (or worse) boss to run amok in the office.
Mr Groper would know that if his victim protests he can simply sign a cheque, hide behind an NDA, and wait for the next unsuspecting employee to arrive.
Weinstein may well be wishing that the breakthrough public allegations against him had only arisen in the UK, rather than the US — where the pesky First Amendment protects freedom of the Press.
And there will doubtless be other moguls behind him, muttering “Me too!”. The consequences of the court ruling for UK press freedom look grim.
It is as if we are going back to a dark age when the rich and powerful could keep their scandals secret.
The courts should have no business gagging the Telegraph on confidentiality grounds.
After all, the newspaper has not signed any non-disclosure agreement with ABC or anybody else.
The media must have the right to publish, and be damned.
Instead, observes Geoffrey Robertson QC, a breach of confidence injunction means “they cannot publish at all — especially if the story is true”!
The first judge who heard ABC’s plea for a gagging order threw it out in August and endorsed the freedom of the Press.
Mr Justice Haddon-Cave ruled that, notwithstanding the claim of confidentiality, publication of the information was “clearly capable of significantly contributing to a debate in a democratic society” and “would be in the public interest”.
But the three Court of Appeal judges pictured, including Master of the Rolls Sir Terence Etherton, overruled him.
Yes, they say, we agree about the importance of freedom of expression and “the essential role played by the Press in a democratic society”.
But (isn’t there always a but?) the judges insist these freedoms come second to the confidentiality of consensual NDAs.
Those “consensual” agreements might not have been signed at gunpoint.
But there can be no real equality between a single wronged employee and a powerful employer backed by lawyers waving a pay-off and an NDA.
Make no mistake, non-disclosure orders backed by court injunctions amount to a rich man’s law — chequebook censorship.
The businessman known as ABC has apparently spent almost £500,000 and counting to persuade the courts to gag the Telegraph.
No “ordinary” citizen could afford to hire top law firm Schillings to hide their non-designer dirty washing from public view.
Yet while our higher courts try to rescue a rich businessman from being embarrassed by newspapers, social media is filled with posts allegedly naming ABC.
How does it serve the cause of truth or honest public debate for out-of-touch judges to slap Victorian-style manacles on responsible journalism while the rumour mills of social media work with impunity?
The assumption that anybody is innocent until proven guilty is a fundamental right — something which #MeeToo lobbyists sometimes forget.
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But so too is the right to tell the truth as you understand it, and be judged in the court of public opinion.
“The rich”, F Scott Fitzgerald is said to have claimed, “are different from you and me”.
To which Ernest Hemingway supposedly replied, “Yes, they have more money.”
What they should not have in a democratic society are more legal rights than the rest of us. That really is ABC.
- Mick Hume is author of Trigger Warning: Is The Fear Of Being Offensive Killing Free Speech?