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Strasbourg and sexual shenanigans: A search for clarity

By Emily Butselaar / 11 March, 2010

Mr Justice Eady on the of difficulty balancing competing human rights and why no parliamentary draftsman could have dreamt up the facts of the Mosley case

Freedom of speech belongs to everyone and needs to be protected on a continuing basis. In so far as it has to be restricted, for sound reasons of public policy, such limitations should be defined with as much clarity as possible. It was emphasised in the European Court of Human Rights at Strasbourg in Goodwin v United Kingdom (1996) that:

… the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

That statement of principle ties in, of course, with the requirement in Article 10(2) of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) that any restriction on freedom of expression must not only be necessary and proportionate but also be prescribed by law. It must not be arbitrary and should be ascertainable by reference to established principles or rules – whether those are to be found in the common law or under statute. Some may well ask whether we have lived up to these ideals over the last few years.

There have certainly been times in our history when the law on freedom of speech has been clearer than it is today. One of those was in the reign of King Henry VIII.

It was pointed out by my colleague Michael Tugendhat, in a lecture in the USA a few years ago, that the earliest record of a positive claim to freedom of speech expressed in the English language is probably to be found in the words of Thomas More in 1523, when he had been appointed Speaker of the House of Commons by the King. It may take a moment for you to acclimatise to his language – not only because, as we are so often told, the age of deference is dead, but also because his style differs markedly from that of the recent incumbents of that high office. What he said was this:

… It may therefore like our most abundant Grace, our most benign and godly King to give to all your Commons here assembled, your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience and boldly in everything incident among us to declare his advice; and whatsoever happen any man to say, that it may like your noble Majesty, of your inestimable goodness, to take all in good part, interpreting every man’s words, how uncunningly soever they be couched, to proceed yet of a good zeal towards the profit of your realm and honour of your royal person, the prosperous estate and preservation whereof, most excellent Sovereign, is the thing which we all, your most humble loving subjects, according to the most bounden duty of our natural allegiance, most highly desire and pray for.

Like the great Bernard Levin, he had no time for full stops. We have to aim off a bit for deference, but that was how one had to do things in those days – although much good it did him in the end. Only thirteen years later, he was very much at the sharp end of what he called that “dreadful displeasure”.

This is not to say, of course, that the concept of free speech had not occurred to anyone before. The free exchange of ideas was something the ancient Athenians prized for its own sake – up to a point. This was not missed at the time of the Renaissance and, as it happened, only a few years before Thomas More’s historic speech Erasmus had, in 1517, sent to King Henry a copy of his Latin text The Education of a Christian Prince. It contained the following sentiments:

“… It is indeed the job of those who keep the prince company to advise opportunely, advantageously, and amicably, but it will nevertheless be well to forgive those whose advice is presented clumsily in order that no precedent may deter those who would advise him properly from doing his duty”.

A little later, he put it more crisply: “In a free state, tongues too should be free”. It certainly has more of a ring to it than some of the language emerging form Strasbourg which I will be discussing this evening. On the other hand, its seductive simplicity may not be apt to embrace all the considerations I need to mention.

You will note that the justification for free speech at that time was not couched in terms of its inherent worth or its value to individual citizens – or subjects as they would then be thought of – but rather in terms of the importance to the sovereign of receiving free and uninhibited advice. Everyone assumed that it was for the King to allow freedom of speech and only to the extent that he thought appropriate to serve his own best interests. But that was all about to change. They were all living through the first great information explosion.

From the time of the early printers, it had become inevitable that there would gradually evolve the free exchange of ideas and opinions, not confined any longer to princes or priests, but available to anyone who could read. This opened up the possibility of scientific enquiry and led eventually to the enlightenment and democracy. But there were corresponding difficulties for sovereigns, popes, priests and any other authority figures in whose interest it was to maintain a clamp on the free flow of ideas. The means of controlling such matters were being outstripped by the growth in technology. Comparable issues arise today, of course, in matching existing legal principles to the world of Internet communication. Perhaps more of that in a moment.

Because of the growth of communication through printing, it was seen as necessary by the seventeenth century to introduce in England a system of licensing for book and pamphlet publication. That was part of the top down approach to the exercise of power at the time. This required texts to be submitted to a body of censors: see  the Licensing Act of 1643. But things soon began to change along with the diminution in the executive power of the sovereign. The freedom of debate in Parliament was finally secured by Article 9 of the Bill of Rights in 1689, which stands to this day.

As you know, our modern notion of freedom of the press is generally attributed to the refusal in 1694 (only six years after the Bill of Rights) to renew the Licensing Act. The 19th century constitutional lawyer and historian A.V. Dicey concluded that thereby Parliament had “established the freedom of the press without any knowledge of the importance of what they were doing”.

Thereafter, the law of libel and slander gradually emerged in England in an attempt to strike a balance between what we would now think of as increasingly uninhibited rights of free speech and, on the other side of the scales, the rights of individuals to protect their reputations. It developed and is still developing on a piecemeal basis. But I believe it is right to acknowledge that this is the way we have been looking at such matters for many generations. It is confusing to think of the modern law in terms of the sixteenth and seventeenth centuries, when it undoubtedly was driven by censorship by the sovereign or the executive. Yet some speak as though this is still the case. For example, at the time of the Calcutt committee, looking into privacy 20 years ago, it was often said that self-regulation was the right model because statutory regulation was in some way equated to state control of the press. Yet that is a false dichotomy. It is not, and has not been for a long time, about state control. The laws of libel, contempt, privacy and confidentiality are rather concerned to address a quite different set of issues; that is to say, the fairest way to balance the competing rights and interests of individual citizens.

The Americans have gone down a different route. They took it a long way through the first amendment to their constitution in that rather significant year of 1789:

Congress shall make no law … abridging the freedom of the press … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

That is, of course, a very close relative of what we know as Article 10 of the European Convention on Human Rights. Nowadays we hear a good deal also in this jurisdiction about the right of privacy, as enshrined in Article 8, but the Americans were again there before us, at least in theory, because they had the fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …

So you might think that we had a good deal in common. But we set off down our divergent paths and, most particularly in the light of the recent information explosion, via the internet, we have come in certain respects into collision. They are bringing in even now legislation in different states, and also in Congress, to protect their citizens against what they call “libel terrorism”. Americans do not like finding themselves subject to English law when they publish defamatory matter in England and Wales because they think we are unduly restrictive of freedom of speech. By American standards we do not, even today, have a free press – because of our law of defamation. It was not of course a purely English invention. Lord Diplock in a House of Lords case in 1975 attributed the origins of our law to the ninth commandment that a man shall not speak evil of his neighbour falsely. It is thus perhaps ironic, given its Judaeo-Christian origins, that it should now be so unpopular in the United States.

Recently, in his Ebsworth memorial lecture, Lord Hoffmann made the unfashionable observation that “… the complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation”. The fact is that many people in other common law jurisdictions, and it would appear also in Europe, simply think that the Americans do not weight the scales sufficiently in favour of establishing where the truth lies and of protecting reputation.

What we have to acknowledge, and the Americans do not, is the policy consideration now embodied in the Council of Europe’s declaration 1165 of 1998 that no one Convention right takes automatic precedence over any other. Such rights are not to be ranked in what they called “any hierarchical order” but are to be regarded as of equal value. Whether that is a good or bad ordering of priorities is not for me to say. It is simply the framework within which we all have to operate, at least for the time being, and that was confirmed, specifically in the context of privacy and the press, by the House of Lords in Campbell v MGN Ltd [2004].

It was also recognised explicitly by the Council of Europe 12 years ago that an individual’s right to autonomy and dignity merits protection not just against the state but also against private groups – such as the media. What is more, the protection of Article 8 has been extended to cover a person’s good name. This is seen as part and parcel of human dignity and autonomy. Therefore, we still have today, in our European setting, to achieve a balance between free speech and reputation, which is what we have always striven to do.

The recent communications revolution is comparable to the invention of printing, just on a vaster scale numerically and geographically. The conflict now is not between princes and people, as it was in the 16th and 17th centuries, but between individual communicators and a multiplicity of local laws. Our law takes the approach as a number of other jurisdictions, such as Australia: see e.g. Gutnick v Dow Jones [2002]. Wherever you publish a libel you can be sued according to the law of that jurisdiction. So far as the internet is concerned, by the rather simplistic analogy with reading a book, a libel on the internet is published wherever it is read or downloaded.

What is plainly required is an international agreement to govern communications on the web and, in particular, to determine whether they are to be regulated by an agreed set of supra-national regulations or, if not, to provide a generally acceptable means of deciding which domestic law should apply to any offending publication. But clashes of law are undesirable and will only come increasingly to sour international relations. I would characterise this as essentially an international problem deriving from technical advances. It is obviously not a specifically English or UK issue.

I said earlier, however, that I was going to say something about the topical problems that are specific to this jurisdiction. After several centuries, our law crystallised into a number of reasonably clear principles. So, until a few years ago, whether you liked our approach to free speech or not, at least journalists and lawyers thought they knew where they stood. That remained true, by and large, throughout the 30 years I was practising at the Bar.

Recently, there have been various developments governing freedom of speech that are directed towards the encouragement of greater flexibility. To a large extent, this has been under the influence of the Human Rights Act 1998 and, along with it, that of Strasbourg jurisprudence. There may have been significant advantages in this trend, but one has to recognise that it is an almost inevitable concomitant of flexibility that it will bring with it, at least for a time, unpredictability and uncertainty. Whether this has been a price worth paying will depend on your point of view.

These developments undoubtedly have had an inhibiting effect on the exercise of our freedom of expression, and on journalists in particular; yet it has also, on the other side of the coin, affected anyone who believes that his or her rights have been adversely affected by the media and is wondering whether or not to pursue a remedy. What is more, this uncertainty has impacted on such people even if they have the advantage of what was called in Goodwin “appropriate legal advice”. Lawyers too have found themselves in a very difficult position.

There is thus an important dilemma that needs to be addressed. Flexibility is desirable so far as it goes – since it can be contrasted with rigidity and stagnation. On the other hand, uncertainty is also perceived to be undesirable, since it inhibits freedom of action. The key question is how we are to achieve a reconciliation.

In the context of journalism, we have seen the consequences of greater flexibility in a variety of ways, but two fairly obvious examples should for the moment suffice. On the one hand, there has been the development of Reynolds privilege. This is certainly flexible, as was intended, but it seems hardly ever to be used in litigation. It rarely comes before the courts for consideration, despite the fact that last October it passed its tenth anniversary. Perhaps the main reason is the one given, before the Select Committee on Culture, Media and Sport on 5 May last year, by the editor of the Guardian. It was said that to avail oneself of this defence is time-consuming, expensive and uncertain of outcome. Thus, in order to take advantage of it, a defendant would need the resources of a wealthy media organisation (assuming such things still exist). It would be beyond the reach of a local or regional newspaper.

The other example of flexibility is the development, since the House of Lords’ decision in Campbell v MGN Ltd [2004] of a new cause of action generally referred to as “the misuse of private information”.

We have had to take on board with great rapidity what has traditionally been for us the alien notion of enforceable rights. Every law student used to learn that English law was not about rights but about remedies. That was to a large extent through the influence of Dicey. Now we have to adjust our language and to recognise that we are in what has been called “a new legal landscape”.

It was 80 years ago that William Empson wrote his Seven Types of Ambiguity. Tonight I want to be less ambitious. I will confine myself to just two types of uncertainty. One type of uncertainty is simply inherent in this recently developed human rights jurisprudence. We can do nothing about it. The second is uncertainty as to principles or rules of law. Those uncertainties we can and should do something about. That is where careful and detailed research has an important role to play.

I turn to my first type of uncertainty. Our new human rights environment is conditioned by the European Convention and the Strasbourg jurisprudence. Let us be in no doubt that this is what the government of the day and the legislature wanted when they enacted the Human Rights Act 1998. Why I say that uncertainty is inherent in this new methodology is that individual judges are required to carry out a balancing exercise between competing Convention rights. This was explained very early on in the legislative process, for example, by Lord Irvine LC on 24 November 1997, when the Human Rights Bill was before the House of Lords. He said, specifically with reference to protecting privacy, that the law would work more satisfactorily for the very reason that judges would be required to balance Article 8 and Article 10 with a particular focus upon the facts of the individual case.

Of course, it is not always Article 10 ranged against Article 8. Sometimes, the balance will involve other Convention rights. In the context of applying the law of contempt of court, or considering whether to impose restrictions on court reporting with regard to children in family or criminal cases, the court will also have to weigh up considerations such as open justice and the right to a fair trial under Article 6. That is quite common. Less frequently, Article 2 rights will come into play also. The best known example is that of Venables and Thompson, but there were also the cases of Mary Bell and Maxine Carr, where there was evidence before the court that, if full details of the whereabouts and identities were revealed, their physical safety or their lives would be in danger. In such circumstances, the state through the judicial process is required to recognise and protect the right to life under Article 2, even though it would inevitably involve restrictions on freedom of speech.

It has been made clear in the House of Lords, in Campbell v MGN Ltd and in Re S (A Child) [2005]  that this balancing exercise must be carried out not by reference to generalities, but rather by applying an “intense focus” to the facts of the particular case. This will generally turn on questions of proportionality. My own experience, in the context of personal privacy and, for that matter, defamatory allegations, has been that each combination of circumstances is unique. In so many of the scenarios confronting editors and journalists, it simply will not be possible to consult the in house lawyer and expect a clear ‘yes’ or ‘no’ answer. It is known obviously what sort of factors will need to be taken into account. They are conveniently listed in the JK Rowling case: Murray v Big Pictures (UK) Ltd [2008],  where it was made clear that these include such variables as:

… the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.

That sounds straightforward enough, but because the mix inevitably differs from one case to another, almost infinitely, that statement cannot shed much light on individual outcomes.

This methodology does mean that it will often be difficult for in house lawyers to predict the outcome of any given application for an injunction – not least because they will usually not have the full picture available to them. In any event, it may be quite difficult to anticipate the assessment the judge will make. There is quite often no right or wrong answer. That is integral to the process. As the Court of Appeal has said on more than one occasion, it is not for an appellate tribunal to second guess the judge’s individual assessment – provided that he or she has asked the right questions: see e.g. Lord Browne of Madingley v Associated Newspapers Ltd [2008]. It is inherent in this balancing process that different persons may come up with different answers on the same set of facts. There is often plenty of room for disagreement. That applies at the trial stage as well as at the early point at which an interim injunction is sought. I understand, for example, that one or two people even disagreed with the result in the Mosley trial.

Because of this margin for personal judgment, it is wise to guard against the drawing of general conclusions from the specific findings in one case. It is pointless, since the methodology is now so widely known, for commentators to highlight the outcome of each case that comes along and to interpret it as anything other than a decision on its own facts, or to extrapolate from it so as to claim the emergence of new principles. There are actually very few contested privacy hearings nowadays. Over the last 18 months or so, decisions in the field have mostly been made on ex parte hearings, when only one side has been put before the court. In such cases, it is even more unreal to interpret them as giving rise to a change of direction, one way or another, or as creating new principles. The principles are stated in the decisions of the House of Lords to which I have referred – supplemented to some extent from Strasbourg. They have remained constant for the last six years.

As I say, desirable or not, that level of uncertainty is unavoidable as the law now stands. Indeed, 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 that crops up. All that can ever be done is to set out principles or rules, or to identify factors to be taken into account (as has already been done, for example, in the JK Rowling case). There cannot be any method of identifying ready made answers for unforeseeable scenarios that have not yet occurred. No Parliamentary draftsman could have dreamt up in advance the facts of the Mosley case – or at least, if he did, he should have been doing it in his own time. Indeed, this is true of virtually every set of circumstances that has formed the background of any of the well known cases over the last few years. I suppose it is fair to say that one roving footballer is much like another. I imagine that is why, under soft lighting, confusion can sometimes occur. Even here, however, the combination of individual factors may easily distinguish the solution in one case from that in another.

So much for my first type of uncertainty. By contrast, there are other examples of uncertainty in media law that are perfectly capable of being resolved – and to which, it might be said, we are entitled to have answers at the earliest opportunity. It does not matter greatly whether the answer comes via the judicial route or from Parliament. There are a number of examples one could give.

There is, first, a structural question mark hanging over our law of defamation. Given that the whole point of it is, and has been for several hundred years, to strike a balance between competing policy considerations, we need to know if we have got the balance right in Strasbourg terms or not. In recent years there has been, as you know, something of a trend in Europe towards treating the protection of honour and reputation as being closely linked to, or amalgamated with, the right of privacy under Article 8. It remains a little unclear how firm this trend is, but we need to take account of cases such as Radio France v France (2005) 40 EHRR 29 and Pfeifer v Austria (2009). The approach is consistent with Article 17(1) of the International Covenant on Civil and Political Rights of 1996:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

There are a number of questions being begged there – not least how do you define “unlawful”? But you get the general drift.

I have already referred to the fact that Convention rights are to be treated as of equal value. This would appear to entail that the protection of privacy, and indeed that of honour and reputation, is to be accorded parity with freedom of expression. So why, logically, should the new methodology be confined to privacy?

Ironically, we may find the current balance of our law under challenge from a rather different angle from that to which we have become accustomed.

We are used to hearing what the Americans think of our law. So much so, that we are inclined to overlook the fact occasionally that we are not part of the United States. That may, of course, only be a temporary arrangement, but at least for the moment we are part of Europe. Therefore, we are not permitted to pretend that we have a First Amendment We have never accorded freedom of speech the special place it occupies in the United States – what Lord Bridge described as a “lofty” pedestal: Att.-Gen. v Guardian Newspapers Ltd [1987] Nor, today, would it be compatible with Strasbourg jurisprudence if we attempted to do so.

Nevertheless, we have at least traditionally regarded truth as a complete defence in a libel action. That is because no one should enjoy a reputation to which he is not entitled and, as Lord Denning used to say, “the truth will out”. So we all knew where we were. This principle was subject to the relatively minor qualification in the Rehabilitation of Offenders Act 1974, which sought to accord secrecy to so called “spent convictions”. A person is deemed not only to be entitled to rehabilitation but also, as part of that, in effect to have history rewritten. A spent conviction could only be relied upon by a defendant in a libel action in certain limited circumstances: see section 8. Once or twice it has been queried whether this regime is compatible with Article 10 at all, but fortunately it has hardly ever arisen.

A modern argument in favour of this exemption would need to be formulated in Strasbourg terms rather as follows: namely, that because rehabilitation is a good in itself, there comes a point when it is both necessary and proportionate in a democratic society to restrict freedom of speech, in so far as revelation of the conviction(s) would simply be raking up the past and undermine the individual’s rightful opportunity to be accepted back in society. Some think this approach wrong in principle; that the suppression of truth is in itself undesirable – especially when the suppression relates to public facts, such as a conviction in a criminal court or details about (say) births, marriages and deaths.

But there is another viewpoint that may now have to be taken into account. In privacy cases, the mischief at which the law is now directed is the intrusion into intimate matters, so as to undermine the individual’s autonomy and dignity. It is now accepted that it is no defence merely to say that the intimate revelations are true: see e.g. McKennitt v Ash [2008]  and Lord Browne of Madingley, cited above. That is because the vice is not inaccuracy but intrusion. So far, however, subject to the minor statutory exception I have mentioned, truth is a complete defence in libel. One does not generally have to show that the publication was also in the public interest. After all, the demands for a wider “public interest defence” are intended to protect journalists who have got their facts wrong rather than right.

It has, however, to be recognised that the philosophy behind the Rehabilitation of Offenders Act, founded as it is on proportionality, may find itself extended to other inconvenient facts.

We need to be aware of this possibility because it could raise its head fairly soon as a natural concomitant of the trend towards the need to balance competing rights on particular facts. So far, we have mainly experienced this new way of doing things in the area of privacy. The reason is that we had no law of privacy before and, therefore, effectively Parliament gave the courts a free hand to apply Strasbourg jurisprudence directly. There were few established domestic rules to get in the way. As Buxton LJ put it in McKennitt v Ash, “… in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of Articles 8 and 10”. So this was a fresh breeze blowing from the continent.

This new balancing approach is a fundamental shift in the way we do things. I think that as yet we may not have fully realised quite how fundamental. For example, people are still squabbling about whether the new law about private information is to be categorised as a tort or merely as an extension of old equitable principles governing the law of confidence. The leading text book editors cannot agree about this. The new edition of McGregor on Damages, at para. 42.47, thinks it is a tort, whereas Clerk & Lindsell on Tort, at para. 28.03, thinks it is an extension from equity – but they cover it in their text book anyway, just in case.

The truth may be simpler, namely that the law of privacy is a new creature deriving from the Strasbourg way of doing things, thus requiring language and terminology of its own. The new cause of action may not be classifiable as a tort because the balancing exercise is not about wrongs but about rights. If you are ordered not to do something, or to pay compensation for having done it, because it is not regarded as necessary or proportionate, that is quite a different concept from the court ruling that a legal “wrong” or “tort” has been committed. At least until the judge has carried out the required balancing exercise, it may be said in a real sense that no “wrong” has been committed. It is in the nature of the new methodology that there are no absolute answers. It all depends on the facts.

There is a possibility that this approach will spread into other areas where the issue can also be characterised, whatever the traditional language may have been, as in essence an attempt to reconcile competing Convention rights. The law of defamation provides a classic example since it, like the new law of privacy, is often directed to balancing Article 8 and Article 10. The only difference is that we have long established domestic rules and a conventional terminology of our own as we go about it. Somewhat ominously, in Lindon v France (2008), Judge Loucaides observed that where there is a conflict between two Convention rights, both “… must be implemented and survive in harmony through the necessary compromises, depending on the facts of each particular case”. It sounds unobjectionable, of course, but does this mean that my first type of uncertainty is to be imported wholesale into the field of defamation?

It may soon be argued that while some inconvenient fact in a policeman’s past, or a prospective judge’s past, or a clergyman’s past, could conceivably be of interest to those who may be affected by the way he or she discharges the role, it should in the end be treated as a question of proportionality. Compared with the distress and embarrassment it would occasion, the prospective exercise of freedom of speech would not be sufficiently valuable or important. We might find ourselves losing one of our reasonably clear black and white distinctions (i.e. between truth and falsehood). Our answer to any such challenge would have to be that our domestic law of defamation, as it stands, achieves a fair balance overall between Articles 8 and 10. We would therefore argue that one does not need to try and achieve a fresh balance on the facts of each case – only to apply the familiar rules. But that rather runs against the tide.

This dilemma is already confronting us directly in the everyday context of interim injunctions. It is one of the areas where we need and could achieve a greater degree of clarity. At least for the time being, the position in English law is that it is easier to obtain an injunction to restrain an infringement of privacy than it is to restrain the publication of a libel. Different criteria are applied depending on the cause of action. Indeed, that was a complaint made to the Select Committee last year. That distinction is the result of a historical accident and it may not last indefinitely.

The practice in defamation cases is known as the rule in Bonnard v Perryman [1891], which goes back at least 120 years. It is to the effect, quite simply, that if a defendant deposes to the court that he or she intends to plead justification if sued (in other words, take on the burden of proving that the defamatory sting is true), then the judge will refuse an interlocutory injunction. The defamatory publication will be permitted to go ahead. The claimant will thus be confined to such remedies as he can obtain by going on to trial. The rule has been confirmed in the Court of Appeal since the advent of the Human Rights Act in Greene v Associated Newspapers Ltd [2005], but it has never been considered in the House of Lords or, so far, in the Supreme Court.

By contrast, the position in privacy or breach of confidence is governed by s.12(3) of the Human Rights Act, which lays down that in a freedom of speech case the remedy is to be refused “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”. This has been interpreted by the House of Lords in Cream Holdings Ltd v Banerjee [2005]  to mean that a claimant must show that he is more likely than not to succeed at trial.

It can thus be seen that Parliament requires the court to form a view (often on partial or incomplete evidence) as to the ultimate merits of the case. That will involve the relatively straightforward decision (in most cases) as to whether the information is such that the claimant would have a reasonable expectation of privacy in respect of it. But it may also be necessary for the court to evaluate, as best it can, any public interest argument to be raised by the defendant. It will not suffice, by analogy with Bonnard v Perryman, merely to assert that there will be a public interest in revealing the information.

What Parliament was seeking to achieve was that greater weight should be accorded to freedom of speech in any case in which it arose than if the court merely applied the conventional test for interlocutory injunctions – generally referred to as the American Cyanamid test: [1975] AC 396. If Parliament did not intervene, it was feared that someone could get an injunction by merely showing that he had an arguable case. The irony was, of course, that it seemed for a time that a lower hurdle was also being introduced for libel claimants – although that would not have been the intention of the government or the media lobbyists. Yet, if taken by itself, s.12(3) would appear to enable a libel complainant to obtain an interim injunction if he could simply show, on the available evidence, that his claim was likely to succeed at trial. This would often be likely to trump a defendant who had nothing more to show than an aspiration to plead justification. But it quickly became apparent that the long established and tougher test in Bonnard v Perryman would continue to apply in libel cases: see Greene v Associated Newspapers. Thus, s.12(3) was not intended to set a universal test in freedom of speech cases, but rather to provide a minimum safety net.

It is hardly surprising, therefore, that when it comes to interlocutory relief claims based on privacy are much more frequent, since Parliament chose to set a lower threshold than for libel cases.

I noted earlier that the House of Lords has never had occasion to consider Bonnard v Perryman. It may well be, if the opportunity arises, that the approach in Greene v Associated Newspapers will be endorsed by the new Supreme Court. But it has to be remembered that s.12(3) and Bonnard v Perryman are both to be regarded, in terms of the European Convention, as attempts to strike a balance between competing rights. Both address situations where a defendant’s Article 10 rights come into conflict (at least potentially) with the Article 8 rights of the complainant.

It was made clear by the House of Lords in Campbell v MGN Ltd [2004]  and also in Re S (A Child) [2005]  that competing Convention rights are to be weighed and assessed on the facts of the individual case before the court and not, in particular, by according automatic precedence to any one Convention right over another. It is thus obvious that this “new methodology” does not always provide easy answers – still less before publication has taken place and before the full facts have become available.

By contrast, Bonnard v Perryman provided all concerned (judges included) with very easy answers most of the time. Editors or journalists would always be advised by their in house lawyers that, if they felt able to depose that a plea of justification was to be entered, then an injunction would be automatically refused – unless the complainant was, unusually, able to demonstrate conclusively that such a defence was bound to fail. It is difficult to avoid the conclusion that this doctrine therefore did indeed accord automatic priority to Article 10. That is why it has always been relatively easy to administer – not depending on the outcome of any balancing act by the individual judge.

The question therefore 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. 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? 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.

It is an important issue of public policy. It is not for me to argue for one position or the other. But the question of principle needs to be addressed and resolved. The current distinction can be seen as a significant reason why infringement of privacy is proving for the moment, at least numerically, to be much more popular than libel. Meanwhile, there is the outstanding question of who is to decide, in borderline cases, whether the case should be treated as a claim in libel or as one based on infringement of privacy. Is it the court or is it the claimant?

Nevertheless, the consequences should not be exaggerated. A claim in privacy would not, as is sometimes suggested, enable villains to obtain an injunctio in circumstances where there was a genuine public interest defence to be argued. This rarely arises because, in practice, most applications in privacy cases concern sexual shenanigans of one sort or another where there is no public interest argument available.

I should perhaps refer in this context to the recent report by the Reuters Institute for the Study of Journalism, based in Oxford. It is called Privacy, probity and public interest. The authors are both are journalists by profession, Stephen Whittle and Glenda Cooper, but it has not received much coverage in the press. One of their “key findings” was that:

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.

The editor of the Guardian made a similar point to the Select Committee on 5 May last year.

Another area which requires close consideration and clear answers is that of intrusions into privacy in public places. Twenty years ago, when the Calcutt committee was contemplating a statutory tort, the question was addressed and it was recommended that anything taking place in public should be susceptible to coverage, whether in words or photographic images. Distinctions were therefore drawn, for example, between the grounds or reception area of a hospital, on the one hand, and the places where residents were living or being treated. But that is a view which clearly does not prevail today.

Depending which way you look at it, we now have the advantage of flexibility, or we have to struggle with the uncertainty, engendered by a particular decision of the European Court of Human Rights. You may recall how, a year ago, Lord Hoffmann caused a fluttering in the dovecots of Strasbourg by describing the court, in the Judicial Studies Board Annual Lecture, as unaccountable and as having arrogated to itself the role of a Supreme Court of Europe. Be that as it may, some of its decisions have a real impact on domestic laws. I have in mind the Princess Caroline case, to which Lord Hoffmann drew special attention: Von Hannover v Germany (2004) . It was not a Grand Chamber decision, but it is having a considerable influence nonetheless. It came up for consideration by the Court of Appeal in the JK Rowling case: Murray v Big Pictures, cited above. But no definitive conclusion was reached as to how it affects photographers and journalists in our jurisdiction.

As was pointed out in that case at first instance by Patten J (as he then was), if the decision were to be adopted here in its full rigour, it would have a fundamental impact on the coverage of celebrities to which we have become accustomed over the last few decades. It was assumed in the House of Lords in the Naomi Campbell case that it was unobjectionable to take a photograph of a celebrity “popping out for a pint of milk”. But that was a few weeks before the Strasbourg decision in Von Hannover was reached. According to that judgment, and others in which it has been followed, such as Leempoel v Belgium, on 9 November 2006, “… publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to a debate of general interest to society”. You see what I mean about the clarity of Strasbourg language? Give me Erasmus every time.

This formulation could have the effect of preventing any photographs taken in public places of celebrities – whether “popping out for a pint of milk” or anything else. In Von Hannover, the German courts had rejected Princess Caroline’s claim in relation to street photographs, because she was a public figure “par excellence” or Person der Zeitgeschichte (whatever that means). It seems to have been their view that, therefore, she simply had to put up with that sort of thing. But in Strasbourg a much more restrictive approach was taken. It was concluded that the publication of such pictures could be justified only by reference to a debate of general interest to society. Is that the same as saying that it had to be demonstrated that the publication served the public interest? That would certainly be my best shot, but it is unsatisfactory that we should be reduced to guessing.

I have had experience of a number of cases involving paparazzi chasing celebrities through the streets or staking out their homes. Sometimes they have given hot pursuit and given rise to the risk of vehicles colliding in busy streets. That I have no difficulty with, since it generally falls within the definition of harassment and is already covered in our domestic law by the Protection from Harassment Act 1997. Also, Lord Hoffmann in Campbell made the point that photographing someone in a public place, in particularly intrusive or distressing circumstances, should give rise to a cause of action. The example he cited was that of Peck v UK (2003), which concerned Mr Peck’s apparent attempt to commit suicide within, as it turned out, the view of CCTV cameras. Some of those images were subsequently published. Again, I have no problem with that. But the Princess Caroline case would appear to suggest that a remedy will be available in relation to street photographs even in the absence of harassment, as we currently understand it, and in the absence of anything especially intrusive or distressing. This may or may not be a good thing. All I would say is that, if this is to be regarded as representing the law in the UK, we are surely entitled to know about it and to have it expressed in terms that are readily comprehensible to the average Queen’s Bench judge. At the moment, and indeed for the last six years, this remains a matter of uncertainty.

I have given only a few examples in the time available. There are other issues calling for research and clarification. Should there be an obligation of prior notification, as Max Mosley intends to argue in Strasbourg? Also, how is the public interest 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?

There are many areas in need of clarification. In tackling them, we could usefully take a leaf or two out of the book of the New Zealand Law Commission, in its prolonged study of the need for a law of privacy in that jurisdiction, and of the mechanisms by which it might be achieved. I would suggest that outcomes are likely to be more effective if the approach is a holistic one, such as they are taking there, rather than going for a quick fix. We have seen in recent years how the piecemeal approach leads to something of a bumpy ride.

There is a real need at the moment for a careful and principled assessment of where the law now stands, as well as of the direction in which it should be taken under the influence of Strasbourg jurisprudence. Certainty and clarity are goals to which we need to aspire.

This is an edited extract of a speech Mr Justice Eady delivered at the new Centre for Law, Justice and Journalism at City University London

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