Day when press freedom received a devastating blow
With a businessman utilising ‘gagging orders’ to silence claims by staff of alleged racial abuse and sexual harassment, we ask where will it end?
‘As lawyers, you think NDAS are just part of doing a deal’
IT was an unseasonably warm sunny September day when three of Britain’s most senior judges filed into court to consider The Daily Telegraph’s case to publish reports of a leading businessman’s alleged sexual harassment and racist abuse of employees. Desmond Browne QC, the former Bar Council chairman representing the newspaper, told the Appeal Court judges that the arguments went to the heart of an independent media’s right to inform the public about issues of legitimate public interest. The public, including prospective employees, had the right to know not just about alleged misconduct but also the way in which it is claimed senior managers of the companies had swept aside employees’ complaints.
As a watchdog, Mr Browne continued, the media had an important role to play in telling the public about the way powerful men treated employees. In particular, the case raised serious concerns about how the media could be muzzled by so-called non-disclosure agreements (NDAS) which were used by the businessman to silence and pay off his alleged victims with “substantial sums”.
Did his and his victims’ right to confidentiality through the NDAS override the public interest in publishing the allegations? Almost two months earlier in the high court, Mr Justice Haddon-cave had ruled the story was in the public interest, not only on the basis that it was “reasonably credible” but also that there was little or no reasonable expectation of confidentiality. Nor was the information obtained in breach of the NDAS’ confidentiality, he said.
The case was, however, immediately appealed, bringing it before the second highest court in Britain to be heard by two other judges and the Master of the Rolls. Their judgment, handed down yesterday, granted a temporary injunction against The Telegraph, preventing publication for now. The judges said the public policy considerations relevant to upholding NDAS, the potential breach of confidentiality and the credibility of the allegations made needed to be determined at full trial before publication.
They concluded: “We appreciate that any delay in the publication of matters of public interest is undesirable. That can be met, to some extent, in the present case, by ordering a speedy trial.”
The origins of the story go back to February this year when The Telegraph received a tip-off about the way the businessman behaved towards women.
Journalists began speaking to former staff and associates to establish if the allegations were true. Sources who had known him for between 10 and 20 years described how they had been bullied, threatened and intimidated.
After interviewing more than two dozen people, The Telegraph established that, apart from the alleged bullying, there were more serious accusations of sexual harassment and racism against staff. As journalists contacted potential sources, the businessman became aware that The Telegraph was investigating.
In April, PR executives representing him contacted the journalists, saying they wanted details of the allegations to be put directly to the company. As the investigations were still ongoing, the newspaper kept its counsel.
However, legal letters from the businessman’s lawyers followed, arguing the claims were defamatory and that their newsgathering amounted to “bullying” and “harassment”.
They warned “harassment is also a criminal offence which can lead to your journalists being fine[d] or imprisoned”.
When the reporters continued to investigate, the businessman contacted editors and executives at the newspaper, warning them to desist.
By the summer, The Telegraph was satisfied it had enough material to publish a story about how the businessman had settled substantial claims with employees who had accused him of sexual harassment and racism. It later became apparent that some employees had signed NDAS in their settlements, which meant they could face legal action and the loss of any payout by speaking publicly about their experiences.
NDAS have, in recent years, become tarnished and embroiled in controversy after being used by the rich and famous such as film mogul Harvey Weinstein, to suppress victims’ allegations of sexual harassment or wrongdoing.
Fuelled by the Metoo movement and amid growing concern at the way the wealthy and corporate organisations have used them to hide the true scale of sexual harassment and inappropriate behaviour, Theresa May has suggested there may be a government review of the use of NDAS.
When approached in July by The
Telegraph for a response to the allegations – as is customary – the businessman initially said he and his organisation needed more time to respond “fully” to the allegations as they needed to “find a lot of people” and do their “homework” on the claims. He said that they would “reply properly” by the end of the week.
However, on the day before his response was expected, a legal letter was emailed to The Telegraph, saying lawyers working for the businessman intended to injunct the newspaper to prevent them from publishing the allegations.
This activated a legal process, forcing a court hearing where the businessman sought to halt publication.
The case was simply listed as ABC; DEF; GHI v Telegraph Media Group, ensuring, for now, the businessman had achieved the secrecy he wanted.
It was August by the time the judgment from a day-long hearing in private by high court judge Mr Justice Haddoncave, was handed down. And, in a significant endorsement of freedom of the press, it came out firmly in favour of The
Telegraph’s right to publish in the public
interest.
The judge, who has now joined the Court of Appeal, concluded it was in the public interest for the confidentiality in the alleged victims’ settlement agreements to be overriden and for the story to be published. He stated: “In my view publication by the defendant of the in- formation in question is clearly capable of significantly contributing to a debate in a democratic society. Indeed, in my view, publication of the information would be in the public interest notwithstanding the confidentiality which the claimants’ assert attaches to it.”
Yesterday the Court of Appeal noted he had “emphasised the importance” both under common law and EU law of “political debate in a democratic society, especially when exercised by the media and the essential role played by the press in a democratic society”.
It acknowledged the judge had highlighted controversies over workplace misconduct and a report by the Commons’ women and equalities committee critical of the way some employers and lawyers have used NDAS to “silence victims of sexual harassment at work”.
The committee had said that although NDAS had a place in settling complaints of workplace sex harassment, there was insufficient oversight and regulation of their use. The MPS argued the government should legislate to make it an offence to misuse such clauses, noted the Court of Appeal.
In yesterday’s judgment, the Master of the Rolls, Sir Terence Etherton, Lord Justice Underhill and Lord Justice Henderson said they “entirely endorsed” the judge’s comments “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, including contributing to a debate on a matter of general interest, and the important public concern about misbehaviour in the workplace as well as the legitimacy of NDAS and other legal devices for gagging disclosures by victims”.
But they said Mr Justice Haddoncave had left out the “important and legitimate” role that NDAS played in the consensual settlement of disputes.
The decision will raise concerns about freedom of speech and whether it is appropriate for serious allegations to be concealed by controversial NDAS.
The alleged victims of sexual harassment would have been anonymous in
The Telegraph story.
There is already mounting concern in parliament, led by the women and equalities committee, which was scathing of the “unacceptable” way in which some NDAS had been used to prevent or dissuade victims from reporting sexual harassment to the police or other authorities.
It has recommended that those who use NDAS “unethically” must face “strong and appropriate” sanctions and has called for a “clean up” of the way they are applied.
In particular, it has proposed the government legislate to make it an offence to misuse NDA clauses and extend whistleblower laws to NDAS so alleged victims would be protected if they disclosed wrongdoing to police and regulators.
Maria Miller, the committee chair, said it was “shocking” that big business was still using NDAS to silence both alleged victims and the media reporting such cases.
“It demonstrates how much we need to have legislation to stop this happening because this abuse is covering up wrong doing,” she said.
She was backed by lawyers who said there needed to be a radical rethink of the way industry and powerful individuals applied NDAS.
Mark Stephens, a specialist media lawyer, said that the use of NDAS to block publication was bullying – and any judgment that permitted such behaviour was regressive and retrograde.
“This is the sort of bully boy tactics that we have seen from rich and powerful men aided and abetted by expensive serried ranks of lawyers from the City of London who have historically kept criminality and wrongdoing under wraps through the misuse of NDAS,” he said.
“What you’re doing is you’re taking one piece of egregious behavior – the abusive use of an NDA where there is necessarily an inequality of bargaining positions – and you’re then parlaying that into an injunction which means that your miscreant behaviour cannot be called out in public, even if the victim wants, so that others might be warned to stay away from you.
“It’s obviously a retrograde and regressive judgment and it may be that the court is seeking to provoke a full-blooded attack on NDAS by having a full trial.
“The problem of course here is that they’re not going to get it because you’ve got an inequality of power – you’ve got a person who doesn’t have the means to fight as any sensible person might know.”
Michael Newman, a partner at Leigh Day, said that lawyers had failed to appreciate the shift in public opinion epitomised by Metoo and were now “coming up against this wave of public opinion”.
“I think lawyers are gradually coming round to the fact that maybe NDAS are part of the probem. That’s difficult because we’ve always thought before that that’s how you deal with things apart from going to court,” he said.
He cited examples of bullying chief executives and public figures where staff were trained how to deal with them rather than “sorting him out or making sure he doesn’t do it again”.
“The recent discussion around NDAS has made us realise [that] maybe we’re part of the problem. As lawyers you think these NDAS are perfectly acceptable and they’re commonplace and they’re just part of doing a deal... it enables the person to get some sort of resolution and move on,” he said.
“But what I think the conversation is turning towards is that maybe this is just allowing people to get away with it and it’s allowing the person to perpetuate it.”