Mr Justice Eady: 'The law of privacy is a new creature requiring a terminology and language of its own'

An absence of existing privacy law in England has led to Parliament giving the courts a "free hand" to apply Strasbourg jurisprudence directly, the High Court judge Mr Justice Eady said last night. "There were few established domestic rules to get in the way," he said.

Marking the launch of City University London's new interdisciplinary Centre for Law, Justice and Journalism, Eady, who has judged many high profile libel cases, outlined where he perceived uncertainties in English law in a speech on 'protecting free speech in the context of the European Convention of Human Rights'.

[Read speech in full at this link]

"The law of privacy is a new creature, deriving from the Strasbourg way of doing things, thus requiring language and terminology of its own," he said.

"It is in the nature of the new methodology that there are no absolute answers. It all depends on the facts."

The evolution of privacy law differed from that of defamation, he said, because England had "long established its own terminology" in the latter. But, he suggested, the new methodology could be applied to this area of law in future.

Answering a question from the audience, he denied an accusation made by the press that he was responsible for most privacy decisions in the UK:

"The Master of the Rolls went through a fairly careful analysis of the privacy cases in the last few years, before the Parliamentary select committee last year, and informed them of exactly who had decided which cases.

"The parliamentary select committee has, I believe, accepted that it's not due to one judge, but to a number of different judges.

"And in particular, of course, the important decisions are made, if not in Europe, in the House of Lords, another supreme court, or the Court of Appeal. So I think the fundamental assumption of your question is not actually accurate."

During his speech he denied that privacy law was having a silencing effect on responsible journalism. He cited the recent (little reported, he claimed) Reuters Institute for the Study of Journalism into privacy, probity and public interest:

"There is no evidence of the courts exercising a 'chilling' effect on responsible journalism in the public interest, but there is a challenge for newspapers and magazines who build a business model solely on infringing privacy through intrusive photographs or 'kiss and tell' revelations."

There is a margin for "personal judgement" in privacy cases, the High Court judge stressed. Protecting privacy is accorded parity with freedom of expression, he said, thus requiring a "balancing process".

"[D]ifferent persons may come up with different answers on same set of facts. There is often plenty of room for disagreement at the trial stage, and the early point at which an interim injunction is sought."

"I understand, for example, that one or two people even disagreed over the result of the [Max] Mosley trial," he joked, referring to his privacy ruling in the favour of the former FIA president, against News of the World.

Mr Justice Eady warned against drawing too many conclusions from each case: "It's pointless, now the methodology is known, for commentators to highlight the outcome of each case as it comes along, and to interpret it as anything other than a decision on its own facts, or to extrapolate from it the emergence of new principles."
 
"Even if the law were to be changed the legislature would find it impossible to prescribe in advance a clear answer for each new set of circumstances," he said.

"No parliamentary draftsman could have dreamt up in advance the facts of the Mosley case, or at least, if he did, he should have done it in his own time!"

"[D]esirable or not, that level of uncertainty is unavoidable as the law now stands."

Applying the 'new methodology' to defamation
Rather, the larger uncertainty of concern, he said, lay with principles and rules of law. There was, for example, "a structural question mark hanging over our law of defamation."  Looking at it logically, why would the new methodology coming from Strasbourg be confined to privacy, he asked.

A question arises "as to why a different test should be applied to reputation cases from that laid down by Parliament for those concerning protection of privacy," he said.

"What is the reason why it is, and should remain, more difficult to obtain an injunction to protect reputation than to protect another aspect of human dignity and autonomy, even though both are covered by Article 8 [right to privacy, in the European Convention on Human Rights]? 

"It may prove to be a sufficient answer as a matter of public policy that, in the case of defamation, damages are more often likely to provide an adequate remedy, whereas in privacy cases they are not. But the question at least needs to be thought about."

Other questions raised
Eady called for:

• Greater clarity in the context of interim injunctions: "At least for the time being, the position in English law, is that it's easier to obtain an injunction for an infringement of privacy than it is to restrain a publication of a libel."

• Further examination of former Formula One chief Max Mosley's call for an obligation of prior notification

• Clarity on how public interest is to be assessed: "Should it simply be for the judge to make an objective assessment or should there be a slightly broader test, such as whether the journalist’s perception fell within a reasonable range of views?"

• Eady asked: in borderline cases who should decide if a case should be treated as a claim of libel or an infringement of privacy? Is it the court or the claimant?

Further research
Commending New Zealand's Law Commission research into the need for a privacy law, Eady suggested a "holistic approach" rather than a "quick fix".

"We've seen in recent years that a piecemeal approach leads to something of a bumpy ride."

Eady called for more study of the interaction between law and journalism; the new centre at City University London should "hit the ground running" he said.

Throughout his speech and in the subsequent questions and answers, he dismissed press portrayal of the administration of English law, denying widespread use of super injunctions, suppression of scientific debate and rising libel tourism.

There is a "real need for careful and principled assessment of where the law now stands," he said. 

Free daily newsletter

If you like our news and feature articles, you can sign up to receive our free daily (Mon-Fri) email newsletter (mobile friendly).