In a damning speech at the 2008 Society of Editors conference, Dacre said “arrogant and amoral” judgments handed down by Eady J were “inexorably and insidiously” imposing a privacy law on the British press.
Until now Eady J has kept quiet on the matter, but he spoke out at the recent Justice Conference, which was held in London on 1 December.
“It’s become fashionable to label judges not as independent but rather as unaccountable and as hostile to freedom of speech,” he said.
Eady J referred to Dacre as “the man from the Daily Mail” and laid bare the editor’s views on Article 8 of the Human Rights Act – the right to privacy.
“He didn’t want a law of privacy at all,” Eady commented, adding: “The logical conclusion of that argument is surely that neither judges nor legislators should give effect to Article 8. Yet that is, as I have suggested, hardly a realistic option.”
Prior to the introduction of the Human Rights Act, individuals wanting to argue a right to privacy were required to go to the European Court of Human Rights in Strasbourg. After 2000, however, it was decided that the domestic judiciary would be responsible for deciding how best to enforce Article 8.
According to Eady J, critics of the Human Rights Act who suggest that freedom of the press is being strangled do nothing to develop the debate when they launch personal attacks on the
“What would be more constructive would be for those who don’t like the way things have gone to challenge the balancing role given to judges by parliament [and] to say what they’d put in its place,” he said.
Eady J also rejected claims that foreign claimants had flocked to London to take advantage of tough libel laws.
Research by Reynolds Porter Chamberlain found that the number of defamation cases that reached the High Court surged in 2008 with a total of 259 claims issued last year – the highest number since 2004.
The press pounced on the figures and Justice Secretary Jack Straw pledged to take action against those seeking to restrict freedom of the press.
Eady J, however, countered: “A large juggernaut of a campaign is in progress based on the premise that ‘libel tourism’ has recently become a pressing problem which requires urgent
attention. It would naturally be bad form to suggest otherwise.
“But those of us who are in the front line, the judges who deal with media law week in and week out, we only know what we read in the papers. It’s not a phenomenon we come across in our daily lives.”
This assertion is supported by claimant media lawyers, who point out that in 2004, 267 defamation cases were launched in the High Court and in 2003 the figure stood at 252.
“This year’s not a record high,” says Russell Jones & Walker partner Sarah Webb, adding: “Anyone from abroad who sues has to show a reputation in this jurisdiction and significant
publication in this jurisdiction, not just technical publication.”
Eady J recognised that there are “some important uncertainties of principle confronting courts and journalists at the moment”. Yet the nature of the law means that further certainty will be brought in the fullness of time.
One media lawyer says Eady J delivered a “mild and inoffensive” keynote speech which was necessary to give some context to the recent hysteria around freedom of speech.
“He has an inoffensive manner and is very subtle,” another partner says. “But he has the power to destroy the careers of the people who are trying to bring him down.”
The senior libel judge may have inadvertently set himself up as a hate figure for the mass media, but in doing so he has clarified the debate around issues of privacy and the freedom