Abstract
When The Sun splashed its front-page story about a mystery BBC presenter paying a “child” for sexually explicit photographs in July this year, social media went into frenzied speculation mode. Names were bandied around Twitter, Tik Tok, Instagram and Facebook. At least one MP threatened to “out” the offender under cover of parliamentary privilege.
Nicky Campbell referred one social media post (which implicated himself ) to the police. Gary Lineker and Rylan Clark reassured their Twitter followers that it wasn’t them, while Jeremy Vine dropped all pretence at sympathy for a hounded fellow presenter by pronouncing the BBC to be “on its knees” and urging the unnamed star to reveal himself.
Let’s leave to one side The Sun’s disingenuous defence that it wasn’t alleging any criminal activity (the headline “BBC SEX PROBE: Top BBC star who ‘paid child for sex pictures’ could be charged by cops and face years in prison, expert says” suggested something rather different). Let’s forget about Vine’s assertion of BBC despair, an exaggerated but wholly self-inflicted genuflection, given that BBC News decided to devote half their main evening bulletins to self-indulgent reporting on their presenter’s (perfectly legal) private life. Let’s consider instead one of Fleet Street’s abiding obsessions: the gross disparity between mainstream media not being allowed to name the man in question, while social media have a field day.
These arguments have been well rehearsed over the years, in particular the certainty that every Tom, Dick and Harriet knows who we’re talking about but still – horror of horrors – we, the press and broadcast channels, cannot speak their name. Such hypocrisy! Such unfairness! (And, whisper it quietly, such a shame for the bottom line). Surely, it’s time to change privacy laws! Right on cue, the Daily Mail headlined one story “One in six people know who the scandal-hit BBC presenter is, poll finds”, complaining bitterly that this was “making a mockery of privacy laws”.
This took me back to the then highly contentious case of PJS and YMA, the anonymised acronyms given to a world-famous married couple, one of whom had enjoyed a threesome with another married couple, who promptly took their scoop to the Sun on Sunday. In January 2016, PJS applied to the High Court for an injunction to prevent publication, but was refused pending appeal. That April, the Court of Appeal overturned the decision, ruling that the privacy rights of PJS outweighed the newspaper’s free expression rights.
By this point, predictably, the names had been widely reported online and on foreign news sites (as well as by Guido Fawkes, claiming his Ireland-based blog was not subject to UK rulings). The Daily Mail went to town with a banner headline that shrieked “WHY THE LAW IS AN ASS”, with its standfirst proclaiming: “Countless Americans can read about a married celebrity dad having a threesome with another couple. So why are our judges banning YOU from knowing his name?” When the Sun on Sunday went back to the Court of Appeal arguing that the dam had broken, the court reversed its own decision on the basis that “much of the harm which the injunction was intended to prevent has already occurred”.
Inevitably, PJS appealed against that decision to the Supreme Court, which delivered its decision the following month: by a margin of 4-1, it ruled that the injunction should remain in force. One of the most telling contributions came from Lord Mance in delivering his judgment:
“It is true the story has been accessible on the internet and social media but if the injunction were to be lifted, there would be intensive coverage of the story by the Sun on Sunday – and there is little doubt, by other newspapers…. all of which could constitute additional and potentially more enduring invasions of the privacy of PJS, his partner and their children.”
Due weight must be given, he said, to “the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites”.
This did not go down well with The Sun, whose headline the following day screamed “THE DAY FREE SPEECH DROWNED IN A PADDLING POOL OF OLIVE OIL” (an oblique reference to a particular aspect of those sexual encounters). This monstrous attack on free expression had been abetted, continued the headline, “by four old duffer judges ignoring the internet”. And there the matter has rested, with the press (and, it must be said, many observers) convinced that Canute’s attempts to hold back the waves has nothing on those fusty old farts who just don’t understand the power of the internet.
But here’s the rub. Every year since that ruling, I have taught an undergraduate module on media law and policy, with a class of around 50 media-savvy students who are – of course – wholly immersed in the world of social media. And every year, after going through the details of this case and the rulings, I have asked the question “who are PJS and YMA?”, at least one of whom every single one of them would instantly recognise. Not a single student over the last seven years has been able to volunteer the name of either one.
In the end, Huw Edwards’s wife Vicky Flind revealed his name, ending any speculation. But next time an anonymous celebrity is at the centre of a kiss-and-tell story (involving perfectly legal activity between consenting adults in private), with a press baying for exposure of famous names, we should remember those words of Lord Mance about “the qualitative difference in intrusiveness and distress” of unrestricted press reporting. Even in the world of comprehensive social media coverage, mainstream media still matter. And those predictable tabloid headlines about insidious threats to free speech and an archaic judiciary should be seen for what they are: commercially driven, self-serving rationalisations that have little to do with freedom of the press.
