On 8 October 2011, Mr Justice Eady gave a speech entitled “How private is private?” to the “2011 Young Bar Conference“. The speech is a characteristically entertaining and informative tour of the privacy landscape, with a little gentle teasing of press and politicians along the way and a firm message about the relationship between parliament and the judiciary.
Mr Justice Eady makes his position clear at the outset
“I have been asked to say something about the law of privacy. I can’t imagine why. After all, it seems a bit old hat these days. The principles are now clear and well established”
After a quick visit to Gordon Kaye’s hospital bedroom he reminds us of how quick the public mood can be to change in this area. He reminds us that the revelations about phone hacking of grieving families had led to a “major shift in the public mood that resulted in the media, or rather a section of the media, being on the back foot” but
“That position may easily be reversed in a short space of time and should certainly not be assumed to be permanent . Phone hacking is merely one aspect of intrusion into personal privacy and a different set of facts, involving a different set of “victims”, could just as easily cause public sentiment to swing in the opposite direction”
However, as he points out “Only a few weeks earlier, the mood was quite the other way”. As he says:
“Politicians, the media and a large part of their readership were keen to do away with any protection for privacy and to treat ‘kiss and tell’ revelations as fair game – largely because the ‘victims’ were or were portrayed in the media as, celebrities.”
This would, he points out, be quite contrary to our tradition that different groups of citizens do not have different legal rights.
He points out that the law protecting personal privacy was changed with the sanction of Parliament. This is part of an international trend – not just Europe but Australia and New Zealand as well. HE draws attention to Article 17 of the International Covenant on Civil and Political Rights – which provides that “No one shall be subject to arbitrary interference with his privacy”, pointing out that it does not provide an exception “unless he happens to be a Premier League footballer or unless he has appeared on Strictly”.
After drawing attention to the express protection of “reputation” in Article 17 and the development of the Strasbourg case law in the same direction, Mr Justice Eady then turns to the effect of the Human Rights Act 1998. The key decision was Naomi Campbell – which established, first that to obtain the court’s assistance to enforce a right of privacy no duty of confidentiality is needed and secondly that the rights can be enforced “horizontally” (in accordance with Council of Europe Parliamentary Assembly Resolution No 1165 of 1998).
The question is then asked as to what the judges are doing with the law of privacy. What they are not doing is “introducing a judge-made law of privacy ‘by the back door'” – what has been done has been “on the front doorstep and in the full glare of publicity”. Attention is drawn to the public availability of large numbers of judgements explaining the methodology employed.
Mr Justice Eady points out that the judge are not exactly developing the common law but rather employing a new vocabulary of rights. He points to a lecture given by the Master of the Rolls on privacy and freedom of expression where he said that “Parliament has enacted the general policy and left the application of the policy to particular cases in the hands of the judiciary”. What is that policy he asks:
“It can surely only be expressed in the most general of terms, namely that the courts are to give effect to such rights as are protected by the Convention and that, in doing so, they are to pay regard to Strasbourg jurisprudence”
Fundamental to this, in the privacy context, is the principle that both Article 8 and 10 are of equal value:
“Against this background it is futile to assert, as a quite a number of people have done before parliamentary select committees, that judges are ignoring Parliament’s will in not, as a matter of generality, according priority to freedom of speech. That is not Parliament’s will. Parliament can only be construed as requiring courts to proceed from an assumption of parity”.
Mr Justice Eady then deals with the argument that “injunctions” have got out of hand – point out that examples are never cited and that only small portion are ever seriously contested. This is, he suggests
“because journalists and/or their lawyers realise that relatively little value is attached by the courts … to what is often referred to as celebrity ‘tittle-tattle’ or ‘kiss and tell’. There is no encroachment on the territory of truly investigative journalism“.
He then asks the question as to how successfully has Parliament’s intention to protect Article 8 rights operated? This is, he suggests, almost co-extensive with the issue of how effective the remedy of the interim injunction has proved to be: because privacy once intruded upon cannot be restored only the injunction is of practical use. So, he askes, when a privacy injunction is obtain, how private is private? “Sometimes, the answer is ‘not very'”.
Three factors are identified as having to be taken account of. First, the need to address the requirements of open justice. Second, the impact of the Internet and social media. Third, there is coverage in Parliament. Mr Justice Eady observes
“It is becoming fashionable to undermine injunctions on the floor of one or other of the two houses. One of the problems about an unwritten constitution is that sometimes the rules can be made up as we go along“
After some observations about Mr Hemming – described as “rapidly acquiring the status of a national treasure” – Mr Justice Eady suggests that it is
“not for individual parliamentarians, whether elected or unelected, or indeed for any other individual citizen, to hinder or render ineffective the judicial implementation of Parliament’s will”
The task of the judges is to carry out the will of Parliament – “it is not for judges to decide that a particular law has become unpopular or unenforceable. That is for the politicians”. Although politicians can get a cheap laugh or round of applause from criticising judges
“it serves nobody’s interests to pretend that Parliament and the judiciary are anything other than partners in giving effect to the rule of law”
We commend the full speech to our readers.
Three earlier speeches on the topic of privacy by Mr Justice Eady can be found on the “Judiciary Website”: Launch of new “Centre for Law, Justice & Journalism” (March 2010), “Speech at the University of Hertfordshire” (November 2009) and “Privacy and the press: Where are we now?” (December 2009).
With all due respect to Mr. Justice Eady, he has tended to give Article 8 precedence over Article 10 in most of his judgments. He has also turned many a libel claim into a privacy action by ordering libel hearings in private and sealing court files, even when Associated Newspapers is a defendant. Surely, this is not what Parliament intended, nor are such rulings part of a democratic society based on the rule of law.
In construing what Parliament’s will was it is important to remember that when the clause which became section 12 of the Human Rights Act 1998 was placed before Parliament on 2 July 1998 the Secretary of State said in the House of Commons that the Government had “decided to introduce a new clause specifically designed to safeguard press freedom”. He then went on to say that the Government had “taken the opportunity to enhance press freedom in a wider way than would arise simply from the incorporation of the convention into our domestic law”. He made no such comments about the rights under Article 8.
Section 12 says that the court “must have particular regard to the importance of the Convention right to freedom of expression” but neither it, nor (as far as I’m aware) any other part of the Human Rights Act, says that the court ‘must have particular regard to the importance of the Convention right to respect for private and family life’.