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As we await the judge’s verdict in the Daily Mail privacy case, it is clear that whichever side wins, theirs will be a pyrrhic victory.
That’s because the amount of mud slung by the lawyers for the seven claimants – Prince Harry, Sadie Frost, Elizabeth Hurley, Baroness Lawrence, Simon Hughes, Elton John and David Furnish – and Associated Newspapers, the paper’s publisher, has been considerable. For 10 arduous weeks, they have been at it hammer and tongs in the High Court.
It felt at times as if they were fighting their own, private feud while the rest of us got on with our lives. Indeed, while their conflict raged, an actual war involving real-life missiles did begin. That’s because as well there was an eerie, throwback aspect to the proceedings.
One conclusion that does not need Mr Justice Nicklin’s decision: this was litigation that should have been brought a long-time ago. The world has moved on in leaps and bounds since the articles complained of were published decades ago. It harked back to the days when security was slacker, when companies and the police national computer did not have the barriers it has now, when private detectives could “blag” their way to the confidential information they were after.
Back also to the era before Leveson, when newspaper editors were made to squirm and promise to clean up their act. They did, whatever the supporters of Hacked Off, who were strongly behind this suit, like to insist. The hacking scandal, uproar over the invasion of poor Millie Dowler’s phone, Rupert Murdoch’s squirming before MPs, closure of the News of the World and the drawn-out judicial inquiry, all combined to great and damaging effect.
Since then, every editor of a respectable title has been on their guard. Today, every single item is heavily lawyered, the industry code of practice is generally scrupulously obeyed.
Of course, there are occasional lapses as there are in any industry – but whatever Hacked Off and the likes of Hugh Grant may say, newspapers have changed their conduct, and for the better.
They have existential battles to fight that go to the heart of this action and highlight again how out of touch it seemed. Technology has advanced, such that today’s court of first instance is social media; nobody wishes to be outed or cancelled; no modern news platform – a phrase conspicuously absent from these proceedings – wants to instantly lose its subscribers and advertisers.
It’s progressed, too, so that some of those methods of sourcing stories now appear positively antediluvian. Following the back and forth between the sets of barristers and his lordship was akin to watching an exhibition tennis match played with wooden rackets. It was old and stale; quaint; things are much faster, sharper and unrelenting now.
That said, the judge still has the capacity to hurt. There will be a winner and a loser, of that we can be certain, but a single pointed phrase in his judgment when it comes, could resonate and cause serious pain. That’s because this has not been a dispute centred on money – although it has cost many millions and the financial stakes are sufficiently high – but rather one focused on reputation.
In one corner, seven public figures who maintain they guard their private lives extremely tightly. In the other, Britain’s best-selling newspaper, edited for many years by the man who was in charge during this period, Paul Dacre. In one of the more dramatic moments and what may prove to be his swansong, the former editor was forced to defend his newsroom against accusations of illegality.
In a sense, the injury has been committed, and whatever the judge determines and says will not alter anything. That’s because we heard unedifying detail of how the Mail used 14 ‘PI’s’, or private eyes; how, despite that, they claimed to receive tips from the circle around the celebrities; and how journalists were in contact with them directly (“Mr Mischief” was the nickname used by the Mail on Sunday’s diarist for Harry as they exchanged Facebook messages relating to “a fun weekend of naughtiness”, with the prince saying he missed “movie snuggles” with the reporter, a revelation that raised doubts about the royal’s account that he had met her only once.)
Likewise, the wounds, although inflicted long ago, are seemingly still raw. Liz Hurley cried when the paternity of her son was questioned in reports; Harry’s anger, even today, was evident; as was the hostility and suffering of the remaining five.
Equally, there was annoyance grief among the journalists, that their methods were being traduced, that articles they said had been pieced together by good, old-fashioned (and it sometimes did seem old-fashioned), pain-staking craft was interrogated and ridiculed.
Whether it was wise to pursue the claim after so many years, we shall see. Certainly, it is rare to see a barrister figuratively throwing their hands in the air at the difficulty in pursuing the action they have brought. But this was David Sherborne in his summing up: “It’s a bit like playing pin the tail on the donkey with us being partly blindfolded and there being very little donkey left for us to pin the tail on.”
Often, Sherborne admitted, he had to resort to inferring guilt from the fact that stories contained private information, and Mail journalists had a “propensity” to use unlawful methods. When Mr Justice Nicklin asked for the best single piece of evidence for each article, Sherborne said: “We are asking your lordship to extrapolate.”
Propensity and extrapolate do not sit easily in the evidentiary lexicon. Indeed, the judge accused Sherborne of not attempting to prove his case, but shifting the burden on Associated as to how they sourced a story.
That may give some indication of where the judge is heading. But however he leans, this should be the end of it. The passage of time and the changes in-between, do mean there is unlikely to be a repeat. These scars, though, will not heal, regardless of the outcome.
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