The Daily Telegraph began its front-page article entitled “Privacy law to stop rise in gagging orders by judges” (17 August 2010)  as follows “Britain could get its first privacy law to stop judges creating one by stealth through the courts a justice minister said yesterday”.  The Justice Minister interviewed by the Telegraph is Liberal Democrat peer Lord McNally.  Very brief extracts from that interview are published in the article that spans the front page and page 2 of the newspaper.

News is notoriously thin on the ground in August but a front page article for McNally’s comments on privacy law?  Two questions arise from this piece i) if the Government is considering privacy legislation, what is it seeking to achieve by this legislation; and, ii) whilst this is interesting to me as a lawyer in this field, why is the Daily Telegraph giving such prominence to an article on privacy law?

To deal with the first question; it is difficult to ascertain from this article exactly what Lord McNally thinks about the current application of privacy rights in the UK.  The quotes attributed to McNally are few and far between; he talks of “a general consensus” and a “collected wisdom” that there is a need for change but the article skips erratically between distinct issues concerning privacy, libel, injunctions and costs.  For example the penultimate paragraph refers to McNally’s wish for privacy law not to go as far as in France but the quote that follows this statement apparently refers to libel: “our law as it stands is slightly out of kilter, [and] has encouraged a certain amount of libel tourism”.

The debate on libel and its associated costs have been well rehearsed in the media for the last 12 months and we all expect that both face some level of reform (for libel law see Lord Lester’s draft defamation bill being considered by the Government and for costs see Lord Justice Jackson’s report published over a year ago). Injunctions and the super-hyped “super-injunction” have also been under the microscope by way of a committee under the guidance of the Master of the Rolls.  All this may be very interesting but none of it is news, even when extracted from the mouth of Lord McNally.

But a Government agenda to legislate on privacy is news and worthy of serious consideration.  McNally gives some clues to what he seeks to achieve: “legislation that clarifies, consolidates and removes some of the more dangerous aspects of the way case law has grown up”; he tells the Telegraph that “there was a danger that we were getting towards having privacy law by judicial decision” and that the new legislation will “hopefully remove some of the more onerous aspects”.

The current position, so that we remind ourselves, is that UK legislation (the Human Rights Act) gives effect to the European Convention on Human Rights.  The Convention includes Article 8 which gives individuals within Convention States a right to have their privacy respected.  I am not aware of any consensus whether within the Government or otherwise that we do not intend to remain signatories to the Convention.  The media should be pleased with this because the Convention includes Article 10 which establishes the right to freedom of expression.  Put simply, in privacy cases the job of the judiciary in the UK and other Convention states is to weigh-up the right to privacy on the one hand and the right to freedom of expression on the other.  Factors that assist the judges in privacy cases are whether the individual has a realistic expectation of privacy in a particular circumstance and whether or not there is some public interest in revealing private information.  The much criticised Justice Eady (inevitably referred to in the Daily Telegraph article) is compelled to, and has, applied these Convention rights and has followed jurisprudence that has developed in the Court of Appeal, House of Lords and Strasbourg.  Whilst he has applied his judgement to the facts, if his approach was not consistent with the Convention or judgments of a higher Court, his decisions would simply be overturned.

The same is true, to a certain extent, with McNally’s proposed legislation.  Legislation cannot remove the prospect of a judge exercising his or her judgement over the balance in each case between Articles 8 and 10 or the consequential prospect of the media disliking the outcome of a particular case. If the intention of legislation is to give Article 10 greater weight than Article 8 (or vice versa) the Government would face the prospect of a spate of litigation in Strasbourg to establish that the UK is in breach of its obligations under the Convention.  McNally’s scope for legislating on privacy is therefore limited; which may explain why his quotes in the Telegraph on the detail of what reform is being considered refer to related but separate issues such as super-injunctions, costs and libel.   Legislating “to stop judges creating [privacy law] by stealth” as the opening sentence of the article suggests would be to do so on a false premise; the fact that case law on privacy rights has developed since the Human Rights Act came into force was an inevitable and positive consequence of that legislation.

What is clear from the article (and may answer my second question) is that the Daily Telegraph was keen to extract from Lord McNally quotes that would indicate a weakening of the rights of individuals to protect their privacy; so much is clear from the title “Privacy law to stop rise in gagging orders by judges”.  Whilst it appears unlikely for a newspaper not known for kiss-and-tell journalism, this article is one of a series in which the Daily Telegraph has sought to challenge personal privacy.

It was of course in the pages of the usually genteel Daily Telegraph that we first read that Avram Grant visited a brothel whilst manager of Portsmouth football club.  The Sun carried out the investigation into Avram Grant some months earlier but it decided that to publish Grant’s name would be unlawful. The Daily Telegraph’s decision to reveal Grant’s identity, when even The Sun had refused to, was encouraged by some of the media-friendly observations of Mr Justice Tugendhat when he lifted a temporary injunction obtained by former England football captain John Terry in relation to aspects of his private life now well known to everyone.

The week before the McNally story the Daily Telegraph revealed how golf’s European Ryder Cup captain Colin Montgomerie “wins gagging order over tabloid story”.  Such reporting inevitably leads to fevered speculation as to what information has been “gagged” which spills into the internet and jurisdictions beyond the reach of the UK Courts leaving Montgomerie in possession of an injunction but nevertheless a laughing-stock as he admitted to the assembled golfing press prior to last week’s USPGA Championship.

When one stops to think about it, injunctions or “gagging orders” as the Telegraph describe them, are the only remedy in privacy cases.  Once the information is revealed and disseminated on the internet, what is the point in suing for damages?  The Montgomerie situation illustrates why the injunctions often need to be widely drawn.  By allowing the media to report the existence of the injunction and those involved in the case, in this case Montgomerie, the cat is out of the bag.  No doubt the Master of the Rolls and his super-injunction committee will be watching this closely.

The case that is always used as the yard-stick for privacy law (or the final straw, from a newspaper’s perspective) is Max Mosley’s victory against the News of the World.  In Mr Mosley’s case he had no chance of getting an injunction because the News of the World went to elaborate steps (i.e. restricting knowledge of the story to a few employees and publishing a dummy first edition) to prevent him from knowing about their intention to publish, so the first he knew about it was on the Sunday morning of publication.  The Telegraph refers in yet another recent article about privacy to the “lively debate” that followed the Mosley judgment.  Put simply the debate so far as the newspapers are concerned has been strikingly sympathetic to the News of the World who, it is worth recalling, used subterfuge, blackmail and pure make-believe as part of its journalistic efforts to achieve the unlawful publication.  Far from being a reason to restrict privacy law this case surely illustrates why further protection is needed in the UK and in particular the need for a requirement that the individual is notified before the publication of the article so that he at least has a chance to protect his privacy rather than leave it to be destroyed then face the uninviting option of expensive and intrusive litigation over a modest sum in damages.  It stands to reason that there has not been a single privacy trial since Mosley’s case in 2008.

Lord McNally and the Government may well examine the current regime for protecting privacy rights in the UK.  Lets all hope that this recent article is not a fair representation of their work so far.

Dominic Crossley, Partner, Collyer Bristow LLP