Feature: Tabloid blues - privacy and the press

The sex lives of the rich and famous make for salacious reading, but the juiciest information comes at a price – and mostly for the newspapers ­themselves when they are hauled in to the High Court for invading the privacy of their targets..

The newspapers almost always lose and, according to Daily Mail editor-in-chief Paul Dacre, the fault lies with one man: Mr Justice Eady.

Dacre made a speech at last week’s Society of Editors conference in ­Bristol, damning the judge’s stance on privacy and provoking a debate on the powers of the judiciary (TheLawyer.com, 10 November 2008).

Eady J stands accused by Dacre of monopolising the best cases so that he can push through his own anti-newspaper agenda by introducing a tough privacy law on the sly.

The judge and the Daily Mail have had previous run-ins. Last year, for example, Eady J ruled on the former BP chief Lord Browne’s case against Associated Newspapers.

He stopped details of Browne’s personal conversations with ex-boyfriend Jeff Chevalier from appearing in the paper, but decided that BP’s ­shareholders had the right to know that Browne had lied in court.

The boundaries between press freedom and the privacy of individuals are nebulous and disputed. The main piece of legislation in question is the Human Rights Act 1998 (HRA), which in 2000 ­introduced a right to respect for someone’s private and family life in law for the first time.

There is a contradiction between Article 8, which asserts privacy, and Article 10, which asserts freedom of expression. Article 8 says: “Everyone has the right to respect for his private and family life, his home and his ­correspondence.”

Article 8 often beats Article 10 to the punch. Three years ago, in McKennitt v Ash (2005), Eady J went through a number of passages from an exposé of Canadian singer Loreena McKennitt, deciding whether each one breached privacy rules. Privacy won out in that case, which has been cited in many ­subsequent disputes as a key ­precedent.

With his speech Dacre has lifted the lid on this simmering dispute between the press and the judiciary.

Harvey Kass, legal director for Daily Mail publisher Associated Newspapers, sides with Dacre on ­privacy. He says that restricting press freedoms will make public figures less accountable for their actions.

“Is protecting privacy in cases like Mosley worth the sacrifice of selling less papers and reducing the resources available for democracy-enhancing investigative journalism? I don’t think so,” comments Kass. “Great news for corrupt politicians, of which there will be more, but very bad news for the rest of us.”

Fundamental principles

Journalists, as well as lawyers, have been stirred into action by the cold war between the press and the judiciary. David Leppard, assistant home affairs editor at The Sunday Times, is in agreement with Dacre, saying: “It is entirely wrong that a single judge should take it upon himself to invent such sweeping restrictions on the freedom of speech and the legitimate activities of a free press.

“The role of the press is to hold the establishment to account. Provided it acts responsibly, with due diligence and within the rules laid down by the Press Complaints Commission, there should be no impediment in a free country to its activities.

“If there is to be an attempt to erode these fundamental principles, it should be a matter for Parliament and not a single, unelected and ­unaccountable judge, to debate.”

Not everyone in the press was favourable to Dacre. Nuala Cosgrove, director of editorial legal services for the Daily Mail’s ideological opposite The Guardian, thinks Eady J has acted within his proper remit.

“Paul Dacre’s speech was unfairly biased against Mr Justice Eady,” says Cosgrove. “It’s true that he reserves the majority of the interesting cases for himself, but surely a privacy law built up through judicial precedents is preferable to one legislated for by MPs whose self-interest might ­outweigh public interest and ­freedom of expression.”

Even McKennitt, the Canadian singer at the heart of McKennitt v
Ash, has spotted the story and put forward her own observations on TheLawyer.com. McKennitt believes that Dacre’s comments were ­intended to persuade High Court judges to give the press more leeway in future ­privacy cases.

“As editor-in-chief of [Daily Mail and General Trust, the paper’s parent company], and, if I am correct in understanding, now chairman of the Press Complaints Commission’s ­editors’ code of practice committee, one can only hope Mr Dacre will employ greater veracity of fact and balanced reporting than illustrated in his speech, which was clearly ­intended to inform or influence other editors,” McKinney wrote on The Lawyer’s website last week.

Judicial powers

Dacre’s speech was more than just a discussion of where the boundaries lie for press freedoms. He suggested that Eady J has used his judicial ­powers to enact a privacy law?of?his?own?making?by building up ­precedents over time.

It is a bizarre stance to take. ­Accusing a judge of making up a law as he goes along is like accusing a novelist of inventing a plot and ­characters. It is their job. The power of the High Court judiciary is the foundation of the UK legal system.

But for something as important as privacy, surely the input of more than one judge is needed to balance the court’s approach to the rights of ­newspapers and their targets?

Other judges, such as Mr Justice Lindsay and Mr Justice Blackburne, have weighed in on a variety of cases, but there is no doubting Eady J’s dominance of the field.

Dacre may have a point on this aspect of the way privacy is treated in the High Court. But his aggressive stance on the boundaries of press freedoms will be fought every step of the way by celebrities, lawyers and judges.