The simmering feud between Seven West Media and its former employee Amber Harrison exploded into a full-on bare-knuckled legal brawl this week, when Seven took to the Supreme Court of NSW to seek the law’s help in silencing its self-proclaimed nemesis. The move wasn’t really surprising, given what Harrison had started publishing on her Twitter feed.
The ongoing saga, which was originally about Harrison’s complaints over her treatment by Seven and Seven’s insistence that there was nothing much to it, is now well and truly a very public cage fight between opponents who are not pulling their punches.
The present legal situation is that Harrison has been effectively muzzled by the full force of the law. Seven approached the Supreme Court on Monday ex parte, meaning without letting Harrison know in advance. That’s a common and legitimate tactic in cases where you want to get the court to intervene in a dispute, and the extreme urgency of the issue doesn’t allow for mucking around (or there’s a good reason for not tipping them off). Whether that was justified in this case I don’t know. What we do know is that Harrison’s Twitter feed was, from Seven’s perspective, rapidly becoming a very big problem.
When a party approaches the court in this way, seeking injunctions without giving the subject of those injunctions an opportunity to defend themselves, the judge has to make a quick decision. The orders Seven was seeking are called interlocutory injunctions; they have the same effect as final court orders but are based on quite different principles.
The judge (Justice Robert McDougall) had to decide whether Seven has an arguable case against Harrison, on the evidence it was presenting (which isn’t publicly available yet). If so, he then had to be satisfied that the “balance of convenience” favoured granting the injunctions against her. Evidently, he was. That doesn’t mean Seven has won the case or the judge has a particular view either way as to whether it ultimately will; at this stage, it’s purely a matter of minimising the damage Harrison is allegedly causing.
Injunctions might be common, but the ones levied against Harrison are unusually wide. They effectively silence her completely. She is presently prohibited by law from talking about basically anything to do with Seven, any of its related companies, current or former directors or employees, her termination by Seven or her sexual relationship with CEO Tim Worner, by any public means whatsoever. That includes talking to the media on or off the record, participating in social media, or commenting on or publishing anything. She is shut out of the public conversation altogether on those topics.
Interestingly, Harrison is also expressly forbidden from making, permitting, inducing or encouraging anyone else to make any adverse statement, “publicly or otherwise”, about Seven and its people. What’s unusual about this order is that it is not restricted to the subject matter of her personal dispute with Seven; it has general application. For now, she isn’t allowed to say anything mean about Seven or its personnel to anyone in any context. It probably reflects contractual confidentiality obligations she already has, but it’s an unusually wide prohibition for a court to impose on an ex parte basis.
Another interesting feature of the interlocutory orders made by the judge is the final sentence, which says this: “To Amber Harrison. If you disobey [the injunctions] you will be liable to sequestration of property and to imprisonment.”
It’s true, those consequences are possible for anyone doesn’t comply with a court order. Initially Harrison did appear to be flirting with disobedience, and Seven was threatening contempt proceedings, which is what happens in such a case. The available range of punishments for contempt is open; basically it’s up to the judge. The explicit reference in this particular order indicates a real concern about potential non-compliance.
The orders against Harrison were initially only an overnight affair, lasting long enough to get Harrison to the court house on Tuesday. They’ve since been extended for five days, to give her and her lawyers time to prepare themselves properly for the fight. In the meantime, the muzzle remains in place.
There’s a shallow irony in the spectacle of a media company, which would usually be fighting against suppression orders and pushing for its right to gain access to stories of public interest, asking the courts to shut someone else up. Seven would say, and I’d agree, that the fact that it is a media organisation is entirely incidental to its dispute with Harrison. It has the same rights as any other company or individual to protect its own private affairs from inappropriate exposure.
The case neatly illustrates one of the endless contradictions that shape the law: the competing rights of free speech and privacy. Harrison has plenty she wants to say and, apparently, plenty of documents she’d like to disseminate. The law starts from the assumption that she’s free to say her piece, except so far as her exercise of free speech might do harm or infringe the rights of others. One of those rights is our reasonable expectation of not having our private, personal stuff broadcast to the world.
It’s true that corporate entities, having no soul, don’t have a right to personal privacy. They do, however, have a lot of secrets, and legitimate commercial reasons to protect those secrets. And they employ humans who are entitled to privacy.
Harrison, it seems, possesses material and information that Seven does not wish to be publicly disseminated. Harrison’s right to express herself as she wishes doesn’t include the right to tip the bucket on secrets she is legally obliged to keep. At Seven’s instigation, the court has imposed, temporarily, a gag on Harrison that goes beyond that frame and bans her from the public debate altogether.
The orders presently in force are extraordinary, underlining the degree of the threat Harrison’s actions are apparently thought to present. The law, as blunt instrument, might in this case be cracking a walnut or actually preventing a disaster; we’ll get a much clearer sense of this once both parties are in court.
In the meantime, Harrison’s Twitter feed rolls on. Some tweets have been removed, but she still has a bit to say, including engaging a noisy tweet-fight with Seven West board member Jeff Kennett. The legal case, if the parties don’t do the obvious thing and settle their grievances once and for all, is going to be quite the spectacle.