Confidentiality kicked into play

Rupert Butler discusses the impact of a ground-breaking injunction preventing the publication of details of a footballer's extra-marital affairs

This month Mr Justice Jack made an injunction that sent shock-waves throughout the tabloid press.

Will his 'daisy-cutter' detonate across Fleet Street and be the end of the kiss-and-tell-tale?A premiership footballer kept two mistresses outside his marriage, one of whom went to the newspapers to tell her story.

On getting wind of this, the footballer sought an injunction preventing publication of his identity and his affairs.

Mr Justice Jack, in granting the injunction, declared that sexual relationships are, by definition, confidential between the parties.

Would such a declaration have prevented disclosure of past sexual stories involving the likes of Mellor, Merchant and Profumo?How can sexual relationships be confidential? At what stage in the spectrum, from holding of hands in the park to the swapping of vital bodily fluids, does sexual confidentiality start? The lack of a clear definition will cause major problems.

President Clinton used Old Testament sophistry to create an uncomfortable distinction between oral and penetrative sex.

Would Mr Justice Jack have agreed to the publication of acts of fellatio but have drawn the line at intercourse? Most intelligent adults, seeing celebrities behaving intimately with people other than their spouses, in restaurants or nightclubs, know full well that they are not popping home to tidy a sock drawer when the limousine arrives to collect them.

It is insulting to the public to deny, by an injunction, what we know goes on for a fact.This insult is highlighted when footballers justify their ludicrous salaries by comparing themselves to entertainers.

They rake in extra cash through endorsements and public appearances.

As their marketable value depends upon public image, hell-raisers attract certain brands, while clean-living, happily-married men attract others.

The injunction creates a hypocrite's charter to the deception of the paying public and the personal advancement of the footballer.The injunction becomes utterly absurd when its consequences are pushed to their natural extreme - to the point where sexual confidentiality ends.

What if one of this footballer's mistresses gave birth to his child? The logical conclusion of the decision is that the mother of the child would be forever prevented from claiming or admitting its paternity.

Irrespective of hers or her child's human rights, or what the Child Support Agency might say, as a matter of policy it would be daft to create a breed of silent Madonnas through want of contraception.

The identity of the footballer would have to be revealed and he should not be in any better position because he did not impregnate his mistress.Who owns the sexual confidentiality? The footballer's wife probably knows about his affairs and the injunction and is probably trying to hold together her marriage.

But what if she had decided to blow the whistle? Worse still, she might have presented a divorce petition, a public document, based on adultery.

Policy could not prevent her from so doing.

Therefore, the efficacy of the current injunction entirely depends upon the wife's voluntary connivance.

It is a bad order and brings the courts into disrepute should she change her mind.Usually the press puts its stories to its 'victims' for their comments prior to publication.

This balancing exercise gives a chance to correct any gross untruths.

It also tips off the victims and will now give them a chance to apply for an injunction to prevent publication.

The mischief created by this ruling will be the abandonment of the balancing exercise in favour of going into print regardless - thereby removing a safeguard to the innocent and defamed.It is unlikely that Mr Justice Jack's charmingly naive Victorian pastiche, where gentlemen keep mistresses and the mistresses keep quiet, will be allowed to stand.Rupert Butler is a barrister at London-based media specialist law firm David Price Solicitors and Advocates