The editor of the Daily Mail, Paul Dacre, has attacked the libel judge, Mr Justice Eady, in a speech to the Society of Editors. In that speech, he defends the role of the newspapers in prying into the private sexual lives of minor celebrities: a function which, Dacre believes, is essential to the moral health of the nation.
I disagree. Although, of course, I watched the videos of Mosley cavorting with his posse of scrawny tarts, I cannot pretend that doing so has made me a better person. Society has not been improved by this sort of reporting. I am more disgusted by the indulgence of my own prurient interest in other people’s private lives than I am by a businessman’s infidelity to his wife.
Nevertheless, I do share Dacre’s key concern: that a judge – specifically, Mr Justice Eady – has used the the jurisprudence of the European Convention on Human Rights and Fundamental Freedoms, to introduce a de facto privacy law, on which there has been no Parliamentary, or other democratic debate:
[I]nexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.
The law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.
I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.
Two cases in particular underline this threat.
Two years ago, Justice Eady ruled that a cuckolded husband couldn’t sell his story to the press about another married man – a wealthy sporting celebrity – who had seduced his wife.
The judge was worried about the effect of the revelations on the celebrity’s wife. Now I agree that any distress caused to innocent parties is regrettable but exactly the same worries could be expressed about the relatives of any individual who transgressed which, if followed to its logical conclusion, would mean that nobody could be condemned for wrongdoing.
But the judge – in an unashamed reversal of centuries of moral and social thinking – placed the rights of the adulterer above society’s age-old belief that adultery should be condemned.
Recently, of course, the very same Justice Eady effectively ruled that it’s perfectly acceptable for the multi-millionaire head of a multibillion-pound sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him.
The judge found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World contested, though some of the participants were dressed in military-style uniform. Mosley was issuing commands in German while one prostitute pretended to pick lice from his hair, a second fellated him and a third caned his backside until blood was drawn.
Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”.
Nor in his mind was there anything wrong in a man of such wealth using his money to exploit women in this way. Would he feel the same way, I wonder, if one of those women had been his wife or daughter?
But what is most worrying about Justice Eady’s decision is that he is ruling that – when it comes to morality – the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral”.
In the sporting celebrity case, he rejected the idea that adultery was a proper cause for public condemnation.
Instead, he declared that because family breakdown was now commonplace, there was a strong argument for “not holding forth about adultery” or, in other words, attaching no greater inherent worth to marriage than to any other lifestyle choice.
Thus no moral decision was to be made between marriage and those who would destroy it, between victim and victimiser, between right and wrong.
In the Mosley case, the judge is ruling that there is no public interest in revealing a public figure’s involvement in acts of depravity.
What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.
But most worrying is that when it comes to suppressing media freedom, the good Justice Eady is seemingly ubiquitous….
It was he who was going to preside in Tesco’s libel case against the Guardian, which was, in the event, recently settled out of court.
It was the same Justice Eady who, in Lord Browne versus the Mail on Sunday, ruled that BP’s shareholders had the right to know that Browne had lied to the court – but did not have the right to know details of his conversations with his partner, despite the paper’s case that they had serious public-interest implications.
Again, it was Eady who found in favour of a Canadian folk singer called Loreena McKennitt, who had objected to the publication of a book about her by a former adviser, Niema Ash. Ms McKennitt did not claim that the book was in any way untrue, merely that it had infringed her right to privacy. Never mind Ms Ash’s right to freedom of expression.
And it is Eady who, almost unnoticed here, has the distinction of having provoked the US Congress – in what’s dubbed the Libel Tourism Bill – to consider making English libel judgments unenforceable in America. This follows the judge’s decision to allow a Saudi banker to sue a New York author in the London courts even though she hadn’t published her book in Britain. Not for the first time, it seems that our colonial cousins can teach us a thing or two.
But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.
English Common Law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression. I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.
If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen.
All this has huge implications for newspapers and, I would argue, for society. Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.
Put another way, if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.
Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice
Great Britain is a liberal democracy. Liberal democracies respect the fundamental rights of individuals, and do not legislate to overrule them. They may frequently do so by means of a bill of rights, which is justiciable and enforceable by judges. This country, certainly since the Human Rights Act 1998, does just this: we have empowered judges to interpret both statute and the common law, so as to achieve conformity with the European Convention on Human Rights, and its caselaw. When Mr Justice Eady rules on news stories involving sadomasochistic businessmen, he is simply exercising that power.
The danger with human rights legislation that grants judges a very broad interpretive discretion, is that at some point those judges are increasinly open to the charge that they are acting as delegated legislators, instead of mere adjudicators. That should not be a surprise. Human rights laws will always potentially politicise judges in this manner. Accordingly, judges should always be alert to the danger that, by developing the law too quickly and upredictably, they discredit their office. That is why, although I support the right to abortion and believe that gay men and women should be entitled to marry, I oppose the attempt to achieve these rights by means of judicial innovation. In Britain, both these rights were established in law by legislation, and therefore by public consent. Perhaps it is, in part, for this reason that they are relatively uncontroversial issues.
The blame for this state of affairs can be laid at the feet of both the Government and the Judiciary. The tension between privacy and freedom of expression is longstanding and innate, and cannot be sensible solved piecemeal, by means of an ad hoc series of judgements, where the outcome could simply not sensibly have been predicted by the parties. Parliament should have legislated for a privacy law. With some legislative guidance, judges are less likely to go off the rails.
But Mr Justice Eady is not without blame. Dacre is right to say that his application of the law has been offensive and absurd. Eady is no friend of freedom of expression. Indeed, when given the choice between Article 10 and any other right, freedom of expression usually ends up the loser. You will remember that it is Mr Justice Eady who decided that the spiv and self publicist, George Galloway MP, was entitled to £15,000 from a small Jewish community radio station, who created a spoof Gallowayeque character whose catchphrase was “Kill the Jews“.
As I said at the time, I do not think that George Galloway is an anti-semite. He merely is a supporter of terrorist groups which are anti-semitic and genocidal. I believe that it is possible for a person to support anti-semitic would-be genocidaires, without being a racist yourself. However, it is outrageous that, thanks to Mr Justice Eady, it is not possible to speculate that one of the reasons that this prominent politician allies himself with the foulest of racists and tyrants, is because he shares their perspectives on the world.
That is why I think it is time that Mr Justice Eady be reassigned to long and boring cases about charterparties, fiduciary duties, and the like. He is not a man who is temperamentally suited to cases involving privacy, libel, and freedom of expression and should prevented from wreaking further damage on this country’s legal system.
