The British #MeToo scandal which cannot be revealed
https://www.telegraph.co.uk/news/2018/10/23/british-metoo-scandal-cannot-revealed/
A leading businessman has been granted an injunction against The Telegraph to prevent this newspaper revealing alleged sexual harassment and racial abuse of staff.
The accusations against the businessman, who cannot be identified, would be sure to reignite the #MeToo movement against the mistreatment of women, minorities and others by powerful employers.
#MeToo became a worldwide social media campaign last year after revelations about Harvey Weinstein, the American movie mogul. Like Weinstein, the British businessman used controversial non-disclosure agreements (NDAs) to silence and pay off his alleged victims with “substantial sums”.
NDAs have been commonly used in business to protect matters of commercial confidentiality but there are concerns they are now being abused to cover up wrongdoing and deter victims of potential crimes from going to police.
Theresa May has already indicated that she plans to restrict the use of NDAs to prevent abuse, but Parliament has yet to consider changes to the law and campaigners are urging the Prime Minister to act now.
On Tuesday night, Maria Miller, who chairs the Commons Women and Equality committee, said it was “shocking” that NDAs were still being used to gag victims and should not be used “where there are accusations of sexual misconduct and wider bullying”.
Zelda Perkins, Weinstein’s former aide who broke a non-disclosure agreement from the late 1990s to allege sexual harassment, said it was “ridiculous” that The Telegraph had been prevented from reporting the allegations. She said: “NDAs have become weaponised.
“They were originally very useful things to protect commercial property and company secrets which, of course, is fair enough. But, in terms of them being used for anything else, there has to be legislation to stop that.
“There is no place for NDAs at all around any of these types of misdemeanours. If that protection is available then it perpetuates that sort of behaviour,” she said, adding that fewer people “would be putting their hands up someone’s skirt if they knew that they didn’t have a get out”.
The Telegraph spent the past eight months investigating allegations of bullying, intimidation and sexual harassment made against the businessman, but on Tuesday this newspaper was prevented from revealing details of the non-disclosure deals by Sir Terence Etherton, the Master of the Rolls, the second most senior judge in England and Wales.
His intervention makes it illegal to reveal the businessman’s identity or to identify the companies, as well as what he is accused of doing or how much he paid his alleged victims.
In a 20-page ruling published on Tuesday, the Court of Appeal simply refers to the businessman as “ABC” and describes the allegations as amounting to “discreditable conduct”. The interim injunction order states that in five cases “substantial payments” were made to five people as part of “settlement agreements” or NDAs.
As well as re-igniting the #MeToo debate, the gagging of The Telegraph is expected to renew controversy about the use of injunctions to limit British press freedom.
Unlike his alleged victims, The Telegraph has not signed any kind of NDA with the businessman. It has argued there is a clear public interest in publishing the claims, not least to alert those who might be applying to work for him. However, the Court of Appeal has, so far, ruled against this newspaper which, like the alleged victims, now finds itself gagged.
The accused man has hired a team of at least seven lawyers and spent close to £500,000 in legal fees to persuade the Court of Appeal to injunct The Telegraph. He is being represented by Schillings, the legal firm which has also worked with Cristiano Ronaldo, Lance Armstrong and Ryan Giggs, individuals who have controversially made use of NDAs or injunctions to silence accusations of wrongdoing.
On Tuesday, in the latest twist in a legal fight which began in July, the court ruled that the confidentiality of contracts was more important than freedom of speech. It overturned a previous High Court ruling – which can now be reported for the first time – which found that publication of the allegations would be overwhelmingly in the public interest and would significantly contribute to debate in a democratic society. In the earlier High Court case, Justice Haddon-Cave, who is one of the country’s top terror judges, concluded that “in all the circumstances, the public interest in publication outweighs any confidentiality attaching to the information”.
He believed the information – the allegations made against the businessman – to be “reasonably credible” and said their publication of the information “would be in the public interest”.
The Appeal Court judges hearing the case were Sir Terence, as Master of the Rolls, Lord Justice Underhill and Lord Justice Henderson – all of whom have a background in contract law and one also in employment law.
The Court of Appeal judgment said: “The [High Court] Judge concluded that, in all the circumstances, publication by The Telegraph of the information in question was clearly capable of significantly contributing to a debate in a democratic society and, in particular, making a contribution to a current debate of general public interest on misconduct in the workplace.”
However, the Appeal Court judges disagreed with the High Court’s ruling and stressed the importance of legally-binding contracts.
The judgment said: “We entirely endorse the [High Court] Judge’s statements as to the importance of freedom of political debate, the right of freedom of expression, the essential role played by the press in a democratic society … and the important public concern about misbehaviour in the workplace as well as the legitimacy of non-disclosure agreements and other legal devices for ‘gagging’ disclosure by victims.
“The Judge has, however, left entirely out of account the important and legitimate role played by non-disclosure agreements in the consensual settlement of disputes, both generally but in particular in the employment field.”
The ruling said that at this interim stage the judges concluded it is “likely” the businessman may establish that his right to keep these matters confidential may outweigh any public interest, adding “there is a real prospect that publication by the Telegraph will cause immediate, substantial and possibly irreversible harm to all of the Claimants.” The Court of Appeal has ordered that the matter proceed to a speedy trial.
On Tuesday night the ruling was condemned by MPs, equality campaigners and lawyers. Suzanne McKie QC, a lawyer specialising in sexual discrimination, harassment and sexual assault at Farore Law, said it was “naïve” to think “that all claimants readily enter into NDAs because they see the force of the commercial settlement”. She said: “A lot of claimants are forced to enter NDAs because of the sheer cost and unpredictability of litigation.”
Jonathan Cohen QC, who specialises in employment law and commercial litigation at Littleton chambers, said it seemed “odd” that an individual’s “ability to keep bad news out of the press … depended on whether you’re rich or poor”. He said those who are not wealthy have “no chance” of getting an “injunction to prevent publication … whereas the people who can pay for it have got a way to potentially silence the press even if what’s being published is absolutely true.”
“I absolutely do think this is an example of a chilling effect on the press,” he said.
Sources said that the businessman’s behaviour created a negative culture within his companies where many were unhappy about their treatment, which included being humiliated in front of other staff.
The disclosures will raise concerns about how non-disclosure agreements are used to “cover up” potential wrongdoing as well as whether it is appropriate for injunctions to be granted to protect an individual’s privacy when serious allegations have been made.
In recent years, use of injunctions by the rich and powerful to prevent the media reporting embarrassing details has become increasingly controversial. In 2016, it was reported that the number of privacy and celebrity injunction cases brought before the courts had more than doubled in five years, with campaigners arguing that the judiciary had extended privacy rights beyond what would ever have been intended by Parliament. The system has been criticised for unfairly curtailing press freedom and dismissed as “ludicrous” after some individuals are granted anonymity in the UK, but then legally named in America or Scotland.
Comments are closed.
