Exposés of misconduct must be led by and for victims

In October 2018, Arcadia and its Chairman Philip Green successfully obtained a temporary injunction to restrict the Telegraph from reporting on the details of Non-Disclosure Agreements signed by five individuals which allege misconduct on the part of Green. The allegations of misconduct are understood to include sexual and racial harassment and are being compared to the “Me too” scandal. But where are the voices of the victims in this case?

The Telegraph’s front-page story about the scandal in October outlined an anonymous “prominent businessman”. The Telegraph could not reveal Sir Philip Green’s identity, due to Judges temporarily barring the newspaper from identifying Green or revealing “confidential information” relating to allegations of misconduct made by five employees.

Former cabinet minister Peter Hain then used parliamentary privilege to name Green in the House of Lords, resulting in the widespread reporting of the allegations.

The case against the Telegraph was due to go to trial next month, although Arcadia have today revealed that the case has been dropped:

“After careful reflection, Arcadia and Sir Philip have therefore reluctantly concluded that it is pointless to continue with the litigation, which has already been undermined by the deliberate and irresponsible actions of Lord Peter Hain, the paid consultant of the Telegraph’s lawyers Gordon Dadds, and risks causing further distress to Arcadia’s employees,” the company said.

“Consequently, Arcadia and Sir Philip will be seeking the court’s permission to discontinue these proceedings on Monday.”

Despite dropping the case, Arcadia accused The Daily Telegraph of conducting a campaign to “knowingly facilitate the breach” of confidentiality agreement, exposing those who signed up to them and also said that newspaper had caused “untold disruption” to 20,000 staff members.

Good for free speech, or good for the Telegraph?

Of course, wealthy people should not be able to hide their wrongdoing by bringing injunctions. If that is later shown to be what happened here, then many will applaud the Telegraph’s bravery in taking this on.

But whilst it is vital for journalists to serve the public interest and hold power to account, this case was not so clear cut. For example, at an early stage in the proceedings, High Court judge Mr Justice Nicklin directed that attempts be made to ascertain the attitudes of the five complainants to whether information about their complaints should be published, even if they were not named. Of the five individuals who signed NDAs and were the victims of alleged bullying and harassment, two supported Arcadia & Green’s application for an injunction and did not want the Telegraph to publish anything about their cases..

These people (in most cases, women) could have been the victims of appalling and degrading conduct. And they may – which should be their right – have wished to maintain privacy in respect of the treatment they suffered. But anyone who knows them – their local community, their friends and their family – would have known they once worked for Philip Green. And now, since the injunction was effectively broken, their social circle all now know that they could have been one of the signatories of an NDA.

These were the people we should consider in this matter – not Philip Green and Arcadia – but anyone affected by harassment or bullying who now could be exposed to their friends and family against their wishes.

Furthermore, the injunction granted was only temporary – designed to hold until the court could determine the legitimacy of the NDAs.  

Injunctions protect justice, not the rich

There is a myth propagated by elements of the press that injunctions have become commonplace: that they are the first port of call for wealthy people who have done something wrong and want it to be hidden.

But they are in fact incredibly rare – and granted in only extreme circumstances.  A judge has to consider the evidence in each case and the need to report in the public interest, and will only grant the injunction if they are convinced that it is really necessary to protect genuine privacy rights.  Consider some of the most famous cases; the footballer who had an affair, the married couple in an open relationship. These people are not chemical weapons dealers, corrupt politicians or dangerous criminals. Although any injunctions can be expensive, they are not awarded according to the wealth or power of the applicant – they are awarded when someone who has committed no crime is at risk of suffering an egregious intrusion of privacy, or where it is otherwise in the interests of justice.

The Telegraph could have waited until the outcome of the trial, by which time they would have understood more about the Agreements signed and why those two people did not want publication to proceed. They could have only reported in respect of those individuals who were content for publication to proceed.

A decision to publish, on that basis and in the knowledge of those facts, would deserve the support of us all.

But the Telegraph’s agenda here is not support for the victims. It is the scoop in all its sensational detail, regardless of the feelings and anxieties of the alleged victims – each of those five NDA signatories.

Here at Hacked Off we support journalists’ right to tell stories that need to be told. Speaking truth to power is not always easy, but it is right. We believe that exposing reprehensible behaviour of powerful people should be led by and for the victims of these behaviours. Otherwise, we risk perpetuating cycles of oppression and abuse.

What do you think? Comment below.

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Join the discussion and tell us your opinion.

Don Fraserreply
January 28, 2019 at 6:27 pm

Anti-social intimate conduct is abominable and perpetrators, regardless of their status or wealth, deserve to be publicly identified via the media.

John fitzsimmonsreply
January 28, 2019 at 6:31 pm

The wealthy should not be able to escape public scrutiny merely because they have money to pay off the legal system

Kay Buckleyreply
January 28, 2019 at 6:34 pm

I agree with you.

Paul hobbsreply
January 28, 2019 at 6:35 pm

Very difficult to call. The telegraph to me was thinking about selling papers first and the people second. The rights of the victims must be paramount. The telegraph should have waited. They do know what has happened to the victims and their families and friends. They need to investigate mr green in depth and look at his overall attitude to his work force. But check all facts first.

Lynda Stanleyreply
January 28, 2019 at 6:39 pm

I am totally in favour of the press having the freedom to print such information where position and power are abused.
I am also in favour of fact based impartial reporting.
I believe those influential individuals who knowingly give false or misleading information to the public should also be held to account, for example Boris Johnson, Michael Gove et al, and they should immediately lose their position I.e. Sacked! Permanently.

Richard Bridgereply
January 28, 2019 at 6:40 pm

Ex turpi non oritur causa actio. There is no confidence in iniquity. Wrongdoing should ALWAYS be exposed.

William Waughreply
January 28, 2019 at 6:42 pm

I havetaken the liberty of copying the last paragraph of your report as it sums up my thoughts on the matter exactly “I believe that exposing reprehensible behaviour of powerful people should be led by and for the victims of these behaviours. Otherwise, we risk perpetuating cycles of oppression and abuse”.

Christopher Whitmeyreply
January 28, 2019 at 6:50 pm

Thank you for a well-argued article on behalf on behalf of those who suffered – that is the victims, not Philip Green.

January 28, 2019 at 6:53 pm

Anything which exposes the underhand, the liars and cheats of all of the population equaly.
Too many stand to gain financially from deceit. They wont give up easily.

Angela Pankhurstreply
January 28, 2019 at 6:54 pm

I support your view. It may never be known why some of the people involved did not wish their names to be made public but it is only too easy to imagine that powerful interests made it difficult for them to proceed. And I can only begin to imagine the pain, frustration and anger of the others /

Declan connollyreply
January 28, 2019 at 6:56 pm

To me this is simple. If some people did not want their story revealed given they were not accused of a crime but the alleged victims that dominates all other considerations including Hacked Off’s praiseworthy motives and desires.

Neil Tullyreply
January 28, 2019 at 6:56 pm

The Catholic Church has been, or is being held to account for the actions of Bishop’s, Priest’s stretching back 70 years or more, and rightly so. No hiding place.
The rightful persuit of Clergy, should indicate to all wrong doers that there is hiding place for them either.
It is the responsibility of the Courts to ensure that the Law applies to everyone.
Rich Businessmen if found to be avoiding Justice, by paying Hush Money, or other dubious methods should be forcefully reminded, that the Law applies to all..

Patricia Puttnamreply
January 28, 2019 at 6:56 pm

This is a thorny question because if democracy and therefore we hope ‘the truth’ is to be properly served we need accountable reporting.
Popular Newspapers sell on sensation most of the time and this can be held hostage to fortune when exaggeration on the part of a journalist or an editor sauces up the facts. I would be vehermently against NDA’s if our press wasn’t so biased and so poorly funded and researched, a vindictive story as they know full well can ruin people’s lives. We do not have press we can be particularly proud of. So due diligence is essential. None of us who care about news like smutty headlines or a story that cannot have light shined on it

William Allbrookreply
January 28, 2019 at 6:58 pm

Sometimes I think that for the victims exposure could add to their pain and this should always be the first consideration, however much we might dislike the scumbags involved.

Brian Roseburyreply
January 28, 2019 at 7:02 pm

I think there’s a bit of having it both ways here. A implication of the article (with most of which I agree) is that if the five alleged victims had consented to the extra-legal naming of Sir Philip Green, that would have been OK, because other considerations fall away if it can be said that ‘support for the victims’ is driving the process. The naming in Parliament of Green as the subject of sexual harassment allegations, contrary to a court injunction and during ongoing court proceedings, exemplifies the progressive breakdown in the UK and the US of the distinction between evidence-governed due process and public denunciation. It’s ironic that in this case the offender was Lord (Peter) Hain, who in his youth was the victim of a false and politically motivated criminal allegation, of which he was cleared by a court. Setting aside Hain’s irresponsibility (aggravated, in my view, by the fact that the allegations came from the right-wing Daily Telegraph –a newspaper with a track record of deflecting structural questions of social injustice and inequality by reducing them to the delinquencies of a few easily-pilloried individuals), the most disturbing aspect of the episode was its general acceptance across the political and media classes, with only a few politicians speaking against it, notably Dominic Grieve (Conservative) and Alan Johnson (Labour). Green is, of course, an unpopular person, but the protection of the law is something we should all be able to depend on.

David Colemanreply
January 28, 2019 at 7:13 pm

Can we start with The BBC a collection of pathetic, inept, weird, creatures conceived in the slime of London`s low life!!

Mike Pettmanreply
January 28, 2019 at 7:17 pm

The problem here lies with the (ab)Use of NDAs. I am a scientist/engineer and I have signed NDAs to prevent the dissemination of intellectual property so that it can be developed for commercial use without the owner losing rights to income from his property. The use of NDAs by the rich and powerful is entirely a misuse and should be prevented legally.

John Farrandreply
January 28, 2019 at 7:22 pm

Ah, now I understand why Max Mosely and all the dirty glitterati support this organisation!
Cease and desist from sending me any more of your slanted, partisan emails. Once I believed in what you said you were doing. No longer!

Sarah Banksreply
January 28, 2019 at 7:23 pm

I agree that NDAs to protect innocent victims are essential for their protection. That said Phillip Green hardly falls in to the category of innocent as in your example of a couple in an open relationship, or even a footballer who had an affair, he is a man who asset stripped a business and plundered the staff’s pensions leaving them destitute he has no moral compass.

Allan and Mary Tuffinreply
January 28, 2019 at 7:46 pm

We want the second half of the Leveson enquiry to be implemented.

Dennis Lynchreply
January 28, 2019 at 7:49 pm

Journalists should always be allowed to tell the truth about powerful people. The problem arises when the facts are not clear. It is essential that journalists have strong evidence to back up their stories.
The way that Cliff Richard was treated should tell us to be careful. Victims of certain offences are given anonymity and rightly so! Those accused of certain offences should be given anonymity up to the point where they make their first court appearance. Then time should be allowed for any other victims to come forward.

Derek Wyattreply
January 28, 2019 at 7:52 pm

It was wrong of Peter Hain to expose it in the House of Lords. Parliament makes the laws it should not be above them.

George Greyreply
January 28, 2019 at 8:07 pm

I believe that NDA’s should be banned.
They are obviously of use only to wealthy individuals or companies who have committed acts of immorality or illegality that they do not wish to be publicised.

John Parkinreply
January 28, 2019 at 8:18 pm

Sure, speaking truth to power is indeed right. But I am thinking of the case of Cliff Richard. Where was the truth in the BBC’s reporting of the police investigation? Victims must be protected and exposes made – but there are a very small percentage of allegations which are false.

Ray O’Donnellreply
January 28, 2019 at 8:26 pm

No difference front the Cosalt accounts scandal, (No accounts presented, the Chairman and 15% shareholder, walks away at a salt fire sale + a £31 million pounds 8 year contract.
Lose school friend of David Cameron. We all lost our shareholding and many, many pensioners, pension protection funded by tax payers or businesses. No point, as 42 Lords and MPs couldn’t budge them. That was put before Parliament on Live TV, still placed us on the circle line, still going around. So save your breath, it’s a dodgy slightly crooked game , ongoing. Into. ray-1-2-3@hotmail.com. Ray O’Donnell

Ian Brewertonreply
January 28, 2019 at 8:28 pm

I am generally opposed in principle to non-disclosure agreements, because they are always intended to protect the perpetrator(s) of some improper or illegal action, and in general this (whatever the conduct in question) ought not to be concealed. I should like them outlawed altogether; the way to avoid NDA’s is for people and organisations (especially the relatively powerful and/or wealthy) to avoid improper or illegal conduct. That said, while NDA’s continue to be enacted they should be respected, by the press as by everybody else; as should injunctions. I think the public have (or ought to have) the right to know about misconduct in public office, because their taxes and rates pay for the salaries of public officials. I also think there should be a general right to expose wrongdoing along the lines of whistle-blowing, with protection for those who expose it, and this should not be limited to publicly-funded bodies. In the absence of such a right, the press could do a lot to expose such wrongdoing and improper conduct. However the victims deserve protection throughout this; the role of the press should be to expose the villains to justice, NOT their victims to public humiliation.

John Cassidureply
January 28, 2019 at 8:36 pm

To me this os just another example ot the apression being imposed by this horrible ideological Tory government. Since 2010 they have proved that the main population of our union have no say and are not considered in any way. The Torys aim to dovide and separate. The damage Cameron, Osborn, May and the rest of the trash have inflected will effect the union for years to come and could result in its break up.

John Inglesonreply
January 28, 2019 at 8:49 pm

What about public interest? When will the merits of the injunction be assessed?
As a bedroom tax victim – I should like to have legal advice to get it removed – how come rich people can apply to protect their reputation using the law yet I can’t get human rights justice for being compelled to pay £20 per week bedroom tax for a storage room when this tax forces me below what the law says is the legal minimum amount required to live?

Peter Wattsreply
January 28, 2019 at 8:50 pm

Talk with Alan Rusbridger or read “Breaking News”.

Roger Broadiereply
January 28, 2019 at 9:03 pm

Injunctions are a tool ONLY available to the wealthy. There are laws to prevent libel and other defamation of character, which though they are extremely ineffective do permit a degree of redress. The ability to gain an injunction perpetuates class divisions in our society. The only reason for an injunction to be granted should be national security. Everything else should be dealt with by the power of the courts to make the press pay for stories that cause harm – but given what we know about the failure of press regulation in this country, the ability of the courts to make the media pay very heavily for unwarranted infringements on personal privacy should be seriously increased.

David Ashtonreply
January 28, 2019 at 9:46 pm

I think people attacked in the press should have the right of reply, especially if they cannot afford the risks of libel action. I myself have been such a victim (Daily Mail, a year ago). IPSO colluded with the falsification and misrepresentation of facts.

James Kellyreply
January 28, 2019 at 10:20 pm

The Telegraph specialises in bringing down the high and mighty but not for good reasons – rather it sells the paper on sensationalism and its moral concerns are both outmoded and prurient. It has never shown sensitivity or concern for victims . It sensationalises, exaggerates and has a pro-right wing agenda, all of which blinds it to ‘little people’. The business morality and personal morality of Philip Green appear to deserve proper scrutiny but not by this paper, in this way. It is yet another argument, not just for press regulation but for a proper code of conduct for newspapers.

Ron Mallinsonreply
January 28, 2019 at 10:24 pm

The trouble with allegations is that they don’t always result in a guilty verdict. If we trust the prosecuting authorities then we should always açept that those accused are innocent until proved guilty. Otherwise we get trial by media.

Jeanne Jacksonreply
January 28, 2019 at 10:25 pm

What would be the outcome had there not been ‘powerful people’ involved?

Juliet Chaplinreply
January 28, 2019 at 10:53 pm

The “victims'” wishes should be paramount. If they wish for privacy, so be it.

Bill Majrowskireply
January 28, 2019 at 10:57 pm

I broadly agree. Where a person has entered into an NDA the assumption should be that they wish to protect their privacy unless they say otherwise.

David Hoggartreply
January 28, 2019 at 11:03 pm

This sorry saga demonstrates exactly why this campaign needs to run it’s course, the Telegraph has tried to report on fact not use sensational “hatchetism” to sell the publication. The legal system cannot make it’s mind up either, so with very clear publishing standards that are properly audited we can look forward to a win win situation for all parties.

Raymond Harrisreply
January 29, 2019 at 12:47 am

The original purpose of NDA’s was to protect intellectual property from being used by ex-employees for financial gain. Judges are to blame for pandering to the rich establishment by allowing their use to be extended into covering-up misdeeds. Thus the rich and powerful can intimidate those they have wronged.

January 29, 2019 at 8:05 am

I think it is absolutely wrong to name anyone unless they are convicted. Too many people have had their lives ruined by being named and assumed to be guilty until they can prove themselves innocent. This is not the way the law is supposed to work. It used to be innocent until proved guilty. As a woman I know their are a lot of fantasists out their who will jump on the band wagon and a lot of women who will say anything to blacken a mans name just because they are men. It is one persons word against another if it is historic and yet if the case is dropped the accuser is not named. This is wrong and all names whether accused or accuser should be kept quiet until a conviction is gained or not.

Patricia Smithreply
January 29, 2019 at 8:33 am

Victims’ opinions should be taken into account, but should not drive the entire process. They should be protected and their anonymity safeguarded, if they choose not to be named, and if the media break this confidentiality then they should be made to pay damages to the victims. But the overriding consideration should be to bring the perpetrator to justice, and to protect future possible victims. By protecting the current victims too strongly, we may leave the door open for more offences to be committed.

Martin Kingreply
January 29, 2019 at 9:00 am

In general I agree with the comments here but I would add a caveat that only the very wealthy have access to injunctions to avoid damaging information about themselves becoming public. Certainly if those signing an NDA wish for privacy then that must be respected but there have been many instances where signatories of NDA’s wish to speak out but remain silenced by the NDA. Such an NDA may be covering up illegal activity that it might be in the interest of the public to know about.
In such a scenario a responsible press could publish information which could bring about necessary change in society. Each case on its merits but always remembering that the innocent party should have the right to privacy.

Peter Reineckreply
January 29, 2019 at 9:39 am

Although much of what you say makes sense, in your conclusion you seem to be performing a difficult balancing act. Protecting journalists’ right to tell stories that need to be told doesn’t address the question of who will determine which stories need to be told, and on what basis. Suggesting that “exposing reprehensible behaviour of powerful people should be led by and for the victims of these behaviours” doesn’t address issues such as reluctance of some victims to step forward. Publicising information on ongoing judicial proceedings might well prejudice those proceedings, perhaps not in favour of the victims, and so on.

George McElvoyreply
January 29, 2019 at 2:39 pm

You may not agree but the name of any accused should not be released, based on not guilty until proved in a court of law. Just because newspaper like to publish names it does not give them the right to publish. It would save many an accused embarrassment and pain.

Liz Cookereply
January 29, 2019 at 4:33 pm

The problem is with NDAs which allow a victim compensation but then deny any right of response. Generally they seem to be applied as a means of a powerful person or body to get away with unfair behaviour, often to an employee without the means to respond. The Green case is slightly different but still allows someone with power to escape full scrutiny and then to hide behind an apparently engineered disclosure which helps no one. So I have mixed feelings. My instinct is to allow legal process to take place with anonymity where appropriate but to give proper and adequate legal and financial support to those without the means to provide these for themselves.

Jim Fisherreply
January 29, 2019 at 5:33 pm

You say “We believe that exposing reprehensible behaviour of powerful people should be led by and for the victims of these behaviours.” I agree but there is an important difference between reprehensible behaviour and alleged reprehensible behaviour. We must not forget the justice principle of “Innocent until proven guilty”. I believe both alleged victims and alleged perpetrators in such cases should be entitled to anonymity (if they want it) prior to an actual trial for the alleged offence.

Nicholas Pye-Smithreply
January 29, 2019 at 8:45 pm

I have to say that I don’t think the explanation is clear enough. Did the Telegraph publish before the injunction or after?

John Areply
January 29, 2019 at 10:38 pm

We as tax payers afforded a fortune for the Leveson enquiry, brought about at a time when the press had once more dragged themselves into the ‘dog house’.
It was a thorough enquiry that made much sense. It’s recommendations have been ‘quashed’ by ‘influential’…..’rich’ individuals and and a prime minister guided by the media itself.
Implement Leveson Parts 1 & 2 and realise value for the taxed public.

Lindsey Readreply
January 31, 2019 at 5:12 pm

I agree. NDAs should be outlawed, as their purpose seems mostly to cover up wrongdoing.

Lindsey Readreply
January 31, 2019 at 5:16 pm

Martin King’s comments (above) completely mirror my own.

Omer Namoukreply
February 2, 2019 at 11:56 am

“Exposing criticism of misconduct should be led by and for ALLEGED victims” would be fairer comment.
If Lord Peter Hain is “the paid consultant of the Telegraph,s lawyers”, then i hope that he declared his interest before revealing Sir Philip Green’s name.

Clive Sneddonreply
February 5, 2019 at 6:59 pm

I take from this that the UK needs Leveson 2, that it does not need Non-Disclosure agreements which should be outlawed, that it needs protection for inventors between invention and a patent being granted, and that only a court should have the right to name an accused, and that not before they are accused in court. The hard question is whether the victims should have the right to privacy, because if perpetrators are to be brought to justice they must have an accuser willing to testify in court. If too few are willing to testify, a pattern of behaviour becomes unknowable.

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