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.

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