Two recent cases have brought new attention to the ways that British laws can allow the wealthy and powerful to silence their critics.
The first was the rape and sexual assault trial of the comedian Russell Brand. Before his conviction last week, Mr. Brand had obtained an injunction prohibiting another accuser from telling almost anyone — including the police, her family and most doctors — about her claims that he assaulted her. (Mr. Brand has denied her allegations.) That injunction, first revealed by Dan Neidle, a tax lawyer and free-expression activist, apparently remains in force.
In the second instance, two British news organizations were temporarily blocked from reporting allegations of sexual misconduct against David Walliams, a television personality and author of children’s books, before a judge declined to make the injunction permanent. The Guardian newspaper and ITV News, a British broadcaster, published investigations last week into the allegations, which Mr. Walliams denies.
Though both men now face public scrutiny, the revelations of how they used court injunctions — essentially gag orders — to protect their reputations have provoked no shortage of public and political outrage. Judges in other cases have issued “super injunctions,” which prohibit publishing any information even about the injunction itself.
“What will the government do to prevent these abuses of process, and stop the abusive injunctions and super injunctions which stop scrutiny, accountability and the work of the free press?” Nick Timothy, the shadow justice minister, asked in Parliament on Tuesday.
The British government is now “looking at what we can do,” Alex Davies-Jones, the government minister responsible for victims of crime and violence against women and girls, said in response.
The government is “determined to do all we can to ensure that anyone who is a perpetrator of these crimes is held to the full force of the law,” Ms. Davies-Jones said.
Laws From the Age of Dueling
It’s a long way from the modern media environment to British libel law’s historical roots.
The laws were developed in the 17th century to stop aristocrats from settling their reputational disputes by dueling, Geoffrey Robertson, a London-based human rights lawyer, wrote in the 2023 book “Lawfare.”
In order to make the courts an attractive substitute for combat, civil libel law effectively put the burden of proof on the person alleged to have made an offending statement, rather than the person who brought the suit.
The effort worked; dueling has fallen firmly out of favor. But putting the burden of proof on defendants continues to protect the wealthy and powerful today, Mr. Robertson writes.
In the United States, the burden is reversed. Libel plaintiffs, not defendants, must prove that the statements in question are false. Public figures face an even higher standard: They must show that defamatory statements were made with “actual malice,” meaning that the publisher either knew they were false or had reckless disregard for the truth.
That, along with other First Amendment protections, has created a freer publishing environment in the United States than in the United Kingdom.
As media profits have fallen, it has become even more difficult for British newspapers and television journalists to afford to take on deep-pocketed individuals.
Although media outlets do sometimes decide that publishing is worth the costs, in many cases they simply cannot afford to do so.
Most notoriously, The Sunday Mirror in 1994 chose not to report that Jimmy Savile, a prominent TV personality, had sexually abused children. Although journalists had collected substantial evidence of the abuse, the newspaper’s lawyers reportedly said that the story wasn’t worth the risks of publication.
The police eventually concluded that Mr. Savile had committed hundreds of crimes, including raping 28 children.
No Easy Remedies
Over time, British laws have been used not merely to respond to defamation, but to actively try to prevent speech that could cause distress, said Mark Stephens, a prominent British media lawyer.
This, too, is a significant difference from the United States, where “prior restraint” of speech is particularly disfavored under First Amendment law. In Britain, by contrast, injunctions have been an available tool.
It is difficult to gauge how widely used they are, because they are by nature devised to prevent publicity. Ordinary people can, in principle, avail themselves of those protections, too. But the wealthy and powerful have both more incentive to protect their reputations against negative publicity, and more means to hire lawyers to fight what can be expensive cases. Specialized law firms have made that kind of litigation into a lucrative practice.
“The problem is that we still imagine censorship as a man from the government arriving with a blue pencil and deleting sentences, but modern restrictions are so much more subtle,” Mr. Stephens said.
Mr. Brand’s court order silencing his accuser, for example, was nominally an anti-harassment injunction. Jemima Goldsmith, a former girlfriend of Mr. Brand, wrote this week that she had joined him in requesting the injunction because the accuser had subjected her to vicious, antisemitic threats.
Ms. Goldsmith has also accused Mr. Brand of abusing her during their relationship. Rosamund Unwin, the British journalist whose 2023 reporting revealed Mr. Brand’s sexual misconduct, called her “brave” for speaking out about the abuse and said Ms. Goldsmith had assisted her with her reporting.
The accuser, still under the injunction, has not responded to Ms. Goldsmith. But the order went far beyond just barring harassment, prohibiting the woman from speaking about her assault allegations to anyone, even in private conversations. (The police had previously opened an investigation into the allegations, but closed it without pursuing charges.)
Mr. Walliams, after obtaining a temporary injunction against the news outlets, then tried to secure a permanent one, arguing that publishing the allegations against him might lead him to kill himself.
Citing the public interest in journalism that reveals abuses of power, the court rejected Mr. Walliams’ request for a permanent injunction after finding that the state had already provided measures to protect his life by offering him inpatient psychiatric treatment.
Defenders of the current system argue that injunctions and other tools are needed to safeguard privacy and prevent harassment — both serious considerations that are protected under British law.
“If things are private, they shouldn’t become public unless there’s public interest in doing so,” Hugh Tomlinson, a lawyer known for winning injunctions on behalf of high-profile clients, told the Guardian in 2011. Judges, he said, were best placed to make such decisions.
But Mr. Stephens and others say that overzealous efforts to protect those interests can have other, more damaging effects.
“I think there’s been a move from dealing with the consequences, which is a perfectly legitimate place for the law to be, to trying to prevent the consequences,” Mr. Stephens said. “And when you anticipate the consequences you are always overbroad in your restrictions.”
One meaningful change would be to limit the duration of gag orders so that they automatically expire unless renewed by a court, Mr. Stephens said.
The government could also pass legislation prohibiting orders that prevent people from speaking out about harassment or abuse, as it did last year for employer nondisclosure agreements.
But Mr. Robertson argues for a broader prohibition on injunctions against publishing or revealing information, unless plaintiffs can show that there is “no significant public interest” in the information they are trying to suppress.
“This simple amendment should protect serious journalism,” he writes. “In a MeToo era it must be recognized that there is a public interest in allowing women who have been abused by powerful men to tell their story.”
