Sometimes I Don’t Understand Our Legal System

Sometimes the legal system needs to metaphorically hang its head in shame. It will make decisions based on some bizarre notion of political correctness instead of exercising plain common sense. Instead of upholding free speech, as you might expect in a healthy democracy, the legal system subjects it to a full blooded, frontal assault.

A well known British performing artist has been forced by a court to shelve plans for a book detailing his own childhood sexual abuse after (get this) his ex-wife was granted an injunction because their young son might read what he wrote.

Quite separate from the issue of the book banning, this case has already been the subject of some of the most intense and blanket suppression orders I have ever come across in 30 years of journalism. It makes a mockery of the notion of open British justice.

The performing artist can’t be named. The performance art that he is known for can’t be identified. His book publishers can’t be named. The ex-wife can’t be named or identified nor can their son. The exact age of their son can’t be released other than to say: “he is approaching teenage years.”

The ex-wife moved away from the United Kingdom after the couple, were divorced in 2009. But the country she moved to can’t be identified other than to describe it as a place called “ Ruritania.” Why they decided to call it that is anyone’s guess. Maybe the learned judges read too many Harry Potter books.

Seriously, this is Noddyland. The performing artist claimed he had a couple of compelling reasons for wanting to write the book. Firstly, to help him come to terms with a particularly dark and traumatic period in his life and secondly, to encourage other victims, who might have endured similar abuse, to come forward and tell their story.

In successfully applying for the temporary injunction, the man’s ex-wife relied on a legal case dating back to 1897. It involved a man who played a practical joke on an East London pub lady but was found guilty of the “intentional infliction of mental distress.”

The legal action was launched after a copy of the manuscript was leaked to the ex-wife. She said she was acting on behalf of their son who has Asperger’s syndrome, a form of autism, as well as attention deficit disorder and a number of other health problems. She claimed that publication of the book would be a misuse of private information and what her husband was doing amounted to negligence. She also argued that both she, and her former husband, had agreed to a court order at the time of their divorce to prevent their son from learning about the past lives of both parents which could have a detrimental effect on the boy’s wellbeing.

However, the court rejected any suggestion of negligence on the husband’s part. It said parents could not be liable for damages that might arise from parental decisions, made everyday, that might impact on their children. Similarly the court rejected the ex-wife’s claim that the manuscript was a misuse of private information. The book was about the performing artist not his son.

But even though it rejected these legal arguments, the court still found it was necessary to grant a temporary injunction.

In granting the injunction, the court said the performing artist’s book was semi-autobiographical. He was highly successful in his chosen career, despite a tormented childhood. He had endured sexual abuse at school over a number of years, which caused him to suffer physical effects as well as mental illness. He also got a thrill out of self-harm. But through his art he had discovered a means by which he could cope with the trauma of the past. In the manuscript, which the court read, the performing artist was described as having written with clarity and purpose offering some new perspectives on his life and career. But despite this, the court ruled no-one should be allowed to read it.

The court said while it accepted there was a public interest in the book being published, it decided to grant the injunction so that a trial could take place at a later time on the over-riding issue of whether the son’s rights should have precedence over the rights of the father.

Needless to say this case has sounded alarm bells for advocates of free speech. They claim it could establish a very dangerous precedent, which many book publishers say is deeply disturbing because it could undermine the rights of other authors.

A British group that lobbies to defend the rights of writers says the court’s decision paves the way for the injunction of memoirs of any work of non-fiction that may expose or investigate the past. The case allows an aggrieved party to cite the distress of a relative or friend as grounds for censorship.

Another group, Index on Censorship warned that this case represented yet more erosion of the boundaries of freedom of expression.

The performing artist says his right to free speech and the written word is particularly acute and should be respected because of what he went through. I, for one, wholeheartedly agree with him.

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