21 October 2019 - Article
John Whittingdale MP, culture secretary and Chairman of the Common's Culture, Media and Sport select committee, has had what must have been an uncomfortable time this week, as a result of action by some of the subjects of his ministerial responsibilities. The media has, some years on, now reported on a story about his private life. The story of the media's non-reporting of this story however, took some time to be dragged into print. What's the story, morning glory? Unravelling this tangled tale, it appears that four newspapers — the Sunday People, Mail on Sunday, The Sun and The Independent — were all approached with a story of how Mr Whittingdale had had a brief relationship with – unbeknown to him at the time – a woman who was a sex worker. All investigated the details, but then declined to run any articles on the subject, despite the albeit private, but potentially explosive ingredients. The real story here therefore, is not the fact of this relationship, but why it wasn't published at the time, and why it has been now. As a nation of curtain twitchers, we like nothing more than to enjoy our tea and toast on a Sunday morning over tabloid tales of sexual shenanigans. Add a Tory MP and a dominatrix into the mix, and you'd think it was a breakfast classic happily served up by the Red Tops. Yet the story remained – surprisingly – off the media menu while many similar privacy-invading stories are dished up daily. To publish or not to publish Why was this? Because the media bloodhound and watchdog of society — as the press is known — was at the time in the dog-house, licking its wounds after a kicking by Leveson who had conducted his investigation into press ethics following the phone hacking scandal concerning the now defunct News of the World? Or because it had responsibly weighed the rights of privacy against the rights to free speech and — unusually — found the former the winner? Or was it due to a cynical and self-serving self-censorship given that the MP in question was Chairman of the Common's Culture, Media and Sport select committee at the time, and is now responsible for media regulation? Single man dates woman is not a tabloid story. Tory MP dates dominatrix is. But is it sufficiently in the public interest to expose private, sexual matters? The expectation of public facing and public serving politicians is not as strong as that which private civilians enjoy, and the courts properly take account of a claimant's role and persona when weighing the relevant rights of free speech and privacy against each other. Editorial decisions are also taken balancing the respective rights – or perhaps might think balancing the possibility of being successfully sued against the commercial value in publishing. We will never know for sure the reason why the papers in question decided against this story, or what the courts would have decided had publication been threatened and the protection of the court, sought. *Sex and politics, sticks and carrots * Sex and politics are good headline making material. Non publication of a sex and politics story, not so much. And even less so, when it is the media which has the medium through which to publicise it. And so, a real public interest story not taking up as many column inches is that Leveson's recommendations included that financial 'sticks and carrots' be implemented, to ensure fair and independent press regulation. Section 40 of the Crime and Courts Act 2013 was set to provide arguably the biggest stick – that a media claimant unable to access a fully Leveson-complaint regulator (and IPSO to which a large chunk of the media has signed up, is not) may have their legal costs paid by the media organisation, whether they are successful or not. But late last year this section was suspended by Mr Whittingdale. Newspapers may be rubbing their hands in glee at the serendipitous opportunity to talk now, about the MP and the dominatrix. And to have a pop at the campaign group Hacked Off. But they are rather more bashful in reporting the wilting of the press regulation stick. It is a fascinating time to be a media lawyer in London. Whether it is a fascinating time to be an MP – or a dominatrix – is not so sure.