This is a guest post by Thom Dyke, in response to David T’s piece on Lord Dacre’s speech to the Society of Editors.
Reaction to Max Mosley’s privacy action against the News of the World (Mosley v News Group Newspapers Ltd  EWHC 1777 (QB)), was perhaps best summed up by former Sun editor, Kelvin MacKenzie: “This story involves a reasonably famous, powerful bloke, five hookers in a dungeon in Chelsea…you look to the sky and you say ‘there is a God’.”
Lord Dacre chose the occasion of his speech to the Society of Editors to launch a stinging attack on the judgement, the judge who delivered it, and the law on which it is based. I believe he is mistaken on all three counts. I also believe David T is mistaken in a number of contentions which he makes in his post on the subject, and he has kindly agreed to let me take issue with him publicly on these.
As I understand it, David T’s argument is that the law of privacy has been conjured out of the air by Eady J in a singularly undemocratic – even antidemocratic – fashion, and this has tilted the law against the freedom of the press. This contention is wrong on three counts.
First, the law in this area has a pedigree which extends back to a time before Eady J was even in practice. Second, the current privacy rights enshrined in the ECHR were subject to extensive parliamentary debate. Finally, Eady J cannot be accused of using the Mosley case to advance the frontiers of privacy law against the media, and even if he wanted to, the English legal system simply does not permit him to do so.
I believe that since the House of Lords decided Campbell in 2005, English law has settled on a sensible compromise. It rejects the notion of either right ‘trumping’ the other, and instead calls for an “intense focus” to be undertaken. It is a point of interest to note that when it comes to protecting their sources, journalists are often the first to wave the banner of privacy rights.
A (very) brief history of privacy
Addressing the first point in his post, David T argues:
“a judge – specifically, Mr Justice Eady J – 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”.
This ignores the underlying historic structure of human rights law in England and Wales. Since Prince Albert v Strange in the mid-nineteenth century ((1848) 2 De G & Sm. 652.) it has been possible to bring an action for breach of confidence on the basis that private information has been abused by someone who owed a duty of confidentiality.
The modern law evolved to remove the necessity for a duty arising out of a pre-existing relationship. In 1990 Lord Goff noted in the Spycatcher case, that such a duty would arise if “an obviously confidential document is wafted…out of a window” and picked up by a stranger ( 1 A.C. 109 at 281). Thus, with some limitations, it has been open to litigants to enforce their privacy through the common law since before Eady J was in short trousers. Put another way, the law has been evolving toward its current formulation for some years now.
However the courts have always gone to great pains to delimit their powers. Indeed the House of Lords in Wainwright v Home Office  UKHL 53 explicitly rejected the invitation to declare the existence of a tort of invasion of privacy.
Privacy v Democracy?
David T is absolutely right to acknowledge the importance of the ECHR in modern privacy law. In 1998 the Human Rights Act incorporated into domestic law the right to privacy found in Article 8 of the ECHR. However the Act also included the (albeit qualified) right to freedom of expression in Article 10. In the subsequent jurisprudence, much has been made of the fact that neither right should ‘trump’ the other, and instead an “intense focus” should be applied to determine which should win.
Those who argue that Parliament has never debated the issues surrounding privacy laws should examine the relevant pages of Hansard from 1997-8. The inclusion of Articles 8 and 10 in the HRA were subject to a large amount of parliamentary scrutiny during the course of the Bill. Indeed the then Chairman of the Press Complaints Commission, Lord Wakeham, argued vociferously against them, stating that:
“The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self-regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably introduce a privacy law, despite the Government’s stated opposition to one”.
The impact on press freedom of the domestic incorporation of Articles 8 and 10 has been relatively limited. In fact, the government sought to assuage the fears of journalists by including a late amendment which became s.12 of the HRA.
The section buttresses Article 10 by all but removing ex parte gagging injunctions, allowing publication unless a claimant can establish that at trial it is likely that publication should not have been allowed, and reminding the court that it should have reference to the public interest whenever Article 10 concerns are raised.
This does not sound like a law which is dismissive of the freedom of speech rights of journalists.
A further important point raised by s.12 concerns the stipulation for particular regard to be had to relevant professional codes – in this case the PCC Code of Conduct .
The PCC code was subject to some discussion during the Mosley trial. In particular had the NoTW had breached Clause 10 in relation to the use of clandestine devices? In his judgement Eady J noted that “the nature and scale of the distress caused is in large measure due to the clandestine filming and the pictures acquired as a result”.
Whilst Mosley did not seek to rely on an infringement of Clause 10 to support his case, Eady J notes that he found it “difficult…to see how the Clause 10 requirement that “the material cannot be obtained by other means” could have been fulfilled” (at 144-145).
The relevance of the PCC Code in this case is surely this – If the press aren’t prepared to abide by their own code of conduct, then it seems a bit rich that they should seek to lay the blame at the feet of the “wretched Human Rights Act”.
David T makes the point that the Mosley case was one “where the outcome could simply not sensibly have been predicted by the parties”. I have to respectfully disagree with him on this point. Having sat in court for the duration of the trial, it became obvious at an early stage that the issue on which the case would be decided upon, was whether the NoTW could establish a ‘Nazi theme’ to the orgies. If they could, then it was possible that they would be covered by a public interest defence.
Thus the Mosley case turned on an issue of fact, and not a point of law. Eady J was not bending his application of the law to this case, merely applying the facts as they were determined through cross-examination, to the law as laid out both by the House of Lords and the ECHR.
The jurisprudence in this area is crystal clear, and the Mosley case was not an exception to it.
Given the huge amount of personal opprobrium heaped upon Eady J, one would be forgiven for thinking that he was the only judge out there. It is true that he handles the majority of privacy cases that come before him in the High Court, but he is simply one judge amongst the many who sit in the High Court.
The idea of a maverick judge (it’s ok, I’m reclaiming the word from Sarah Palin), making the law in his own image may capture the popular imagination in the form of tv drama like Judge John Deed, but it has little basis in fact. The closest we have ever had to a renegade member of the judiciary was Lord Denning, and it is a mark of the inertia in the English legal system, that many of his more progressive judgements were overturned by the House of Lords.
Eady J sits in the Queen’s Bench Division of the High Court, underneath two further appellate branches, the Court of Appeal and the House of Lords. The point remains that if the NoTW were convinced they had suffered a legal wrong, then they still have the option of appealing to a higher court to seek redress.
Dacre entirely failed to mention this point, and it was subsequently dodged by Graham Dudman, managing editor of The Sun when Lord Falconer questioned him about it on the Today Programme.
The debate over Eady J’s role in “libel tourism” has been discussed at length before on Harry’s Place. I don’t intend to re-hash those arguments, except to say that that Eady J’s critics would do well to actually read his judgement in Bin Mahfouz & Ors v Ehrenfeld & Anor  EWHC 1156 (QB). Suffice it to say that even a cursory read of the judgement in this case is enough to rebut most of the criticisms levelled at Eady J – permission had been granted for service out of jurisdiction, and Ehrenfeld took a less than constructive approach to dealing with the case.
There are other points raised by Dacre which have been responded to elsewhere in the media, and I do not intend to go into them, save that to say that I pretty much disagreed with the entirety of his speech.
In conclusion I believe that there will always be a normative tension between the public’s moral and social values, and the legislative programme of the elected government of the day. It seems to me that the judiciary are well placed to resolve that tension.
The classic statement on public interest journalism was made by Sir John Donaldson MR in Francome v Mirror Group Newspapers Ltd  1 WLR 892. There he noted rather acidly that “the media…are peculiarly vulnerable to the error of confusing the public interest with their own interest.”
The journalism that produced the offending articles exposing Mosley was written purely out of the popular sense of schadenfreude described by Kelvin MacKenzie above. But prurient moralising of the kind advocated by Lord Dacre has no place in the law, and should rightly be kept separate from it.
The author is a barrister.