'If the Telegraph challenges the injunction and wins, they've got a bigger story', says media lawyer

NDAs have a purpose but ‘we want to encourage openness as society’, says media lawyer

Wednesday, October 24, 2018

As the Court of Appeal upheld an injuction against the Telegraph to stop it publishing allegations of harassment against a British businessman, a media lawyer says that, if the newspaper were to challenge the injunctoin and win, they'd end up with a "bigger story". 

Mark Lewis told talkRADIO’s Mike Graham: "NDAs have a purpose, because they encourage settlements... if somebody has to admit something, they are less likely to settle. 

"Both parties normally come into an agreement having been advised as to what is the best compromise.”

He added: “The Telegraph might take a view that they're not going to fight this all the way or oppose it, but if they want to then argue about free speech, there will be a trial which will be held in private to preserve the status quo.

“If the Telegraph wins, they have a bigger story than they would have published, because the story will be 'this is what he tried to stop us saying'.”

Mr Lewis added that NDAs do not prevent people reporting things to the police. 

He said: "Any NDA that is signed is always going to be subject to the right to tell the police about things, to tell the proper authorities, and you can't exclude that right.”


Publishing 'confidential information' 

In August, a High Court judge had refused to gag the newspaper, before the decision was overturned on Tuesday.

Labour MP Jess Phillips has threatened to name the businessman using Parliamentary privilege. 

Speaking at Prime Minister's Questions, she said: "It seems our laws allow rich and powerful men to pretty much do whatever they want as long as they can pay to keep it quiet. 

"Does the Prime Minister support the Court of Appeal's decision to back non-disclosure agreements, which have been used to silence women who have been sexually harassed and others who have been racially abused?"


'You can pay money to get somewhere' 

Mr Lewis added that we want to encourage “openness” in society, and that requires whistleblowers to come forward.

He said: "We want to encourage as a society, openness, to ensure that something that is wrong is exposed. We have Parliament revealing its own bullying status at the moment, this requires people whistleblowing to come forward and provide stories.

"You can pay money to get somewhere. Typically, the person seeking an injunction is going to be far richer than the person that they are injuncting.

"If I was seeing a client at the very beginning and the client wanted to obtain an injunction to prevent a story getting out, I would have to warn them that you pay that money and the court might grant you that injunction, but it might not stop the story getting out.

“What you've done is possibly made the story into a bigger story.”