Sir Shred’s threadbare win in the courts

March 13, 2011

On what spurious legal grounds has Sir Fred Goodwin persuaded some mentally bewildered British judge that he may no longer be referred to as a banker? We may not know, we may not even discuss: such is the all-encompassing gagging power of the superinjunction.

Some say that The News of the World was about to blow the gaffe on his private life. If so, I am greatly surprised that the former financial shredder has a private life worth dissecting, given his celebrated 24/7 dedication to work. I can only imagine that mere sight of the word “banker” attached to his name in the newspapers is enough to provoke a trauma so profound and inconsolable among other members of his family that it may be deemed an invasion of their privacy.

However, I digress. Little remarked so far is Sir Fred’s stupendous contribution to legal history. He is the first non-celebrity (excluding Trafigura, a corporate entity – albeit one of surprising sentience) to be granted such an injunction, which opens the floodgates to all sorts of hitherto unexplored avenues of advantage – some conceivably relevant to the marketing community.

Typically, a superinjunction comes about when a celeb of apparently unimpeachable public deportment (such as Tiger Woods) finds his or her reputation is about to be besmirched by irresponsible journalistic muckracking. The potentially ruinous effect of publication upon sponsorship earnings, combined with the anticipated hurt felt by the celeb’s family on reading the exposé, is often enough to persuade tender-minded judges – Mr Justice Eady prime among them – that the celeb’s inalienable Human Right to privacy is indeed being infringed.

Thanks to Sir Fred, the superinjunction contagion may now spread to all sorts of other commercial activity. Max Mosley could perhaps insist that the word “debauchery” be expunged from any description of his private activities over the past few years, for fear of damaging the reputation of Formula One. Likewise, F1 ringmaster Bernie Ecclestone might exercise a veto over the word “Hitler”.

But these are mere legal foothills, considering the potential for indemnifying careers against all-time marketing disasters.

Imagine how useful a bit of UK juridical tourism might have been to the Ford family if the superinjunction had existed back in 1958, as the Edsel disaster began to shape up.

Robert Goizueta, former chief executive officer of Coca-Cola, could have discovered in the superinjunction a helpful antidote to being hurtfully described as “the author of New Coke.”

And Niall Fitzgerald might have been counting his superinjunction blessings in 1995, when he presided over the introduction of Persil Power. Instead of which, he had to engage in a long and painful public relations battle to rescue his company’s reputation (and his own).

Absurd extrapolation? Well, no more than not being able to call the architect of the RBS/ABN Amro deal a banker.

PS. Are we still allowed to refer to Fred as “Sir”? I understand he was knighted in 2004 for “services to banking”.

Pinning the donkey’s tail to Eady’s ass

December 14, 2009

The appropriately-named Mr Bumble, in Oliver Twist, first coined the phrase “the law is an ass”. Charles Dickens stopped well short of naming names, however.

These days we are more fortunate in being able to pin the donkey’s tail on someone’s posterior: that of Mr Justice Eady. Eady has emerged from the lofty otherworldliness of his profession to deliver some judgements of stunning asininity over the past couple of years.

I don’t often find myself in agreement with Paul Dacre, editor in chief of Associated Newspapers. But last month I was prepared to let bygones be bygones when he castigated Eady for his “arrogant and amoral” judgements which were “inexorably and insidiously” imposing a privacy law on British newspapers.

You’ll probably need no reminding that it was Eady who found in favour of Max Mosley, former president of the FIA motor racing body, in his privacy case against the News of the World two years ago. To let Dacre paraphrase: Eady “effectively ruled that it was perfectly acceptable for the multi-millionaire head of a multi-billion sport followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity.”

And it was Eady again who got a proper wigging from the appeal court after his manifestly biased judgement favouring foul-mouthed newspaper baron Richard Desmond in a libel action against Desmond’s very unauthorised biographer, Tom Bower. In July, the appeal court found that Eady’s decision was “plainly wrong” and risked “a miscarriage of justice”.

All too easily we might believe it was Eady who decided on the utter propriety of gagging newspapers from reporting a parliamentary question about the ne’er-do-well dumping activities of Trafigura off the Ivory Coast – during the so-called super-injunction affair. But I’m told that is not true. Eady did not on this occasion have to be consulted, although I have little doubt where his sympathies would have lain had things got that far. There are plenty of other examples of “Eady’s Law” which help  to confirm my worst suspicions.

Lewd and suggestive?

But here’s the real corker. Eady has now awarded Tiger Woods an injunction which bans anyone from publishing pictures of the golfing legend naked, or with any parts of his body exposed. Theoretically, that would exclude just about every publicity picture ever taken of Woods in his golfing kit; and certainly most of the stuff on his own website; it would exclude those semi-naked and oh-so-lewd shots of Wood shaving himself in the Gillette ads; and all that bare-armed stuff about being a Tiger in the Accenture campaign (not, of course, the reason why these two sponsors are dropping him). Surreally,  a pompous covering note attached to the injunction states: “For the avoidance of doubt this order is not to be taken as an admission that any such photographs do exist, and it is not admitted, any such images may have been fabricated, altered, manipulated and or changed to create the false appearance and impression that they are nude photographs of our client.”

True asinine gibberish. I bet teeth are really chattering at the (extra-jurisdictional) National Enquirer after reading that.

Eady is apparently puzzled and upset at the negative publicity he is receiving, in just the same way that Brian Hutton was puzzled and upset at criticism for the wrong-headed conclusions he drew from his eponymous Inquiry. These people don’t seem to understand that they live within an open society, not above it. O tempora, o mores.

Trafigura, Pepsi and the Mail buckle before the power of the internet

October 19, 2009

Stephen GatelyWhat links Trafigura’s “super-injunction” furore, Pepsi’s “Amp Up Before You Score” fiasco and the row that has erupted over Jan Moir’s alleged homophobia in the Daily Mail? Answer: all three have found they are no match for the internet and social media.

I have no desire to dissect Moir’s insinuation of “unnatural” causes in her article on the death of Boyzone star Stephen Gately. I have no need to. Baroness Peta Buscombe, recently installed as chairman of the Press Complaints Commission, will find her emailbag full enough with the outpourings of a campaign spontaneously generated through Twitter and Facebook without me adding anything to her workload. Good luck with that one, Peta.

One predictable turn of events in “Moirgate” has been the slippery attitude of advertisers who, the minute the heat was turned on, asked to be dissociated from the article. Marks & Spencer’s reaction was typical: “Marks & Spencer does not tolerate any form of discrimination,” said a spokesman for the retailer. “We have asked the Daily Mail to move our advertisement away from the article. This is a matter for the Daily Mail.” Er, no it’s not, or not exclusively. If you allow your media buyer to buy into a certain demographic, in this case the meat-and-two-potatoes prejudices of Middle England, you presumably know what to expect, and should not be surprised or manufacture offence when the Daily Beast serves them up with trimmings. As for the Beast itself, it has been bloodied by an unwonted confrontation with populist outrage. About the only thing it hasn’t done, amid all the fawning self-exculpation, is to actually withdraw Moir’s article online, although it has neutered the innuendo-laden headline.

But if the Daily Mail is out of touch with digital culture, its ignorance is not a patch on that of Trafigura, the oil trading company which has been doing its damnedest to mount an out-of-date cover-up of its iniquitous dumping operations off Ivory Coast. That it did not succeed is largely due to the long arm of Carter-Ruck, a bunch of overweening libel lawyers only too well known to journalists, being unable to gag the offshore operations of Yahoo and Google. The Minton exposé, which Trafigura dreaded seeing the light of day, then did exactly that. In the process, what was largely an anonymous, clandestine organisation has acquired an unenviable new brand identity as a tyrannical abuser of press freedom, parliamentary privilege and the 1688 Bill of Rights. Pretty good going for a week’s work.

Pepsi’s offence was less in scale, but greater in culpability. As a global packaged goods corporation it will pride itself on its digital nous. The Amp Up Before You Score Apple iPhone app promised to be cutting-edge stuff, but in the event only seemed to prove that the right arm doesn’t know what the left is doing in the cola giant’s marketing department. The app has caused such a torrent of abuse on the internet, on account of its crass, “neanderthal” attitude to women, that Pepsi has had to issue a grovelling apology on behalf of its previously little-known soft drink brand, Amp Energy. It’s well known now, but for all the wrong reasons. More on what went wrong in my column this week.

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