The Daily Telegraph

The British #Metoo scandal which cannot be revealed

Leading businessma­n facing allegation­s of sexual harassment and racial abuse gags The Telegraph from publishing details

- By Claire Newell Investigat­ions editor

A LEADING businessma­n has been granted an injunction against The Daily

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.

Last 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.

“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 yesterday 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 yesterday, 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 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 Lance Armstrong and Ryan Giggs, individual­s who have controvers­ially made use of NDAS or injunction­s to silence accusation­s of wrongdoing.

Yesterday, 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 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 “would be in the public interest”.

The Appeal Court judges hearing the case were Sir Terence Etherton, the Master of the Rolls, Lord Justice Underhill and Lord Justice Henderson – all three 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 Daily 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 legallybin­ding 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.

Last 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 that it was “naïve” to think “that all claimants readily enter into NDAS”.

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 that 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 that 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.”

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 suggestion­s will raise concerns about how non-disclosure agreements are being 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, the 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.

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 ??  ?? Zelda Perkins, former assistant to Harvey Weinstein, gives evidence in the Commons
Zelda Perkins, former assistant to Harvey Weinstein, gives evidence in the Commons

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