Brand and Walliams Cases Renew Scrutiny of Britain's Gag Orders and Libel Laws

A woman who says Russell Brand assaulted her cannot tell the police, her family or most doctors about it. A court order obtained by Brand bars her from discussing her allegations with almost anyone, and it apparently remains in force even after Brand's conviction last week in his rape and sexual assault trial. Brand has denied her allegations. The injunction was first revealed by Dan Neidle, a tax lawyer and free-expression activist.

The case landed in the same week as a second one. Two British news organizations, the Guardian and ITV News, were temporarily blocked from reporting sexual misconduct allegations against David Walliams, the television personality and author of children's books. A judge declined to make that injunction permanent, and the outlets published their investigations last week. Walliams denies the allegations.

Both men now face public scrutiny, but the way they used injunctions, which are essentially gag orders, has drawn its own political anger. In some other cases, judges have issued so-called super injunctions, which forbid publishing anything at all, even the fact that an injunction exists. On Tuesday in Parliament, Nick Timothy, the shadow justice minister, asked what the government would do to stop abusive injunctions and super injunctions that block scrutiny, accountability and the free press. Alex Davies-Jones, the minister responsible for victims of crime and violence against women and girls, answered that the government is "looking at what we can do."

The legal backdrop is old. Geoffrey Robertson, a London human rights lawyer, wrote in his 2023 book "Lawfare" that British libel law took shape in the 17th century to keep aristocrats from settling reputational quarrels by dueling. To make courts an appealing substitute, the law put the burden of proof on the person accused of making a damaging statement rather than on the person suing. Dueling faded, but Robertson argues the arrangement still shields the wealthy and powerful. In the United States the burden is reversed: plaintiffs must prove a statement false, and public figures must also show actual malice, meaning the publisher knew it was false or recklessly disregarded the truth.

Money compounds the problem. As media profits have fallen, British newspapers and broadcasters find it harder to face deep-pocketed opponents. The most notorious example came in 1994, when the Sunday Mirror chose not to report that the TV personality Jimmy Savile had sexually abused children, even though journalists had gathered substantial evidence. The paper's lawyers reportedly said the story was not worth the risk. Police later concluded Savile had committed hundreds of crimes, including the rape of 28 children.

Mark Stephens, a prominent media lawyer, says British law has moved from responding to defamation to trying to prevent speech that might cause distress. In the U.S., such prior restraint is strongly disfavored. Nobody can say how often injunctions are used, since they are designed to prevent publicity. Ordinary people can seek them, but the wealthy have more reason and more money, and specialist firms have made the work lucrative. "The problem is that we still imagine censorship as a man from the government arriving with a blue pencil," Stephens said, adding that modern restrictions are far subtler.

Brand's order was nominally an anti-harassment injunction. Jemima Goldsmith, a former girlfriend who has herself accused him of abuse during their relationship, wrote this week that she joined the request because the accuser had sent her vicious, antisemitic threats. Rosamund Unwin, whose 2023 reporting exposed Brand's misconduct, called Goldsmith brave and said she helped with that reporting. The accuser, still bound by the order, has not responded. The order went well beyond harassment, barring even private conversations about her claims. Police had earlier opened an investigation and closed it without charges.

Walliams argued for a permanent injunction on the grounds that publication might lead him to kill himself. The court refused, citing the public interest in journalism that exposes abuses of power and noting that the state had already offered him inpatient psychiatric treatment. Defenders of the system, such as Hugh Tomlinson, a lawyer known for winning injunctions for high-profile clients, say private matters should stay private absent a public interest, and that judges are best placed to decide.

Stephens proposes that gag orders expire automatically unless a court renews them. The government could also ban orders silencing people about harassment or abuse, as it did last year for employer nondisclosure agreements. Robertson would go further, barring injunctions against publication unless plaintiffs show there is "no significant public interest." Whether ministers move beyond "looking" is the question now.