Privacy on parade

Judges are creating new privacy case law with each new ruling. And with the lack of parliamentary legislation

You have 24 hours to stop the nationwide publication of your personal sex diary, which has been stolen to order by your cleaner for a national newspaper.

Chances are that you will have a better chance these days of keeping your privates private than you might have had a few years ago.

As 5 Raymond Buildings barrister Iain Christie remarks: “Broadly speaking we’re seeing judgments and remedies in favour of individuals that assert certain privacy rights that you wouldn’t have seen before.”

This is largely as a result of the Human Rights Act (HRA), which in 2000 introduced a right to respect for someone’s private and family life.

The tension is 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.”

“It’s the first time in English law that we’ve had such a positive right stated in those terms,” says Christie. “Since then courts have been trying to balance privacy with the right to freedom of expression, which always exists in media cases.

“The law’s being developed by the judges on a case-by-case basis.” And among those judges, one stands out as the most influential man in this sensitive field: Mr Justice Eady.

The High Court
Almost all media practitioners see Eady J as the driving force behind the strengthening of the rule of privacy in the High Court.

Tim Senior, an associate at media firm David Price Solicitors, says: “I can’t think of many other judges, it’s mostly Eady.

“The courts have been quite quiet in terms of defamation and privacy cases, and so when it’s come up Eady’s been available.”

Eady J was the first judge to rule on two of the five cases most cited as crucial to how privacy is treated in the courts – Lord Browne v Associated Newspapers and McKennitt v Ash.

Eady J’s 2005 judgment in McKennitt saw public interest take a back seat in the new privacy drive.

He ruled: “Even where there is a genuine public interest, alongside a commercial interest in the media in publishing articles or photographs, sometimes such interests would have to yield to the individual citizen’s right to the effective protection of private life.”

Eady J’s judgment also tightened privacy law to cover both true and false claims.

“McKennitt v Ash was key in the development of false privacy,” says Schillings partner Rod Christie-Miller. “Before there were two ways to defend reputation – something could either be untrue and damaging or true and personal. Now you don’t have to say if it’s true or not.”

Lord Justices Buxton, Latham and Longmore wholeheartedly approved of Eady J’s judgment in the Court of Appeal and the Lords refused to hear the appeal at all, bolstering privacy in subsequent cases.

In Lord Browne v Associated Newspapers, Eady J took a slightly softer line, but still kept details of Browne’s relationship with Jeff Chevalier hidden from view by preventing The Mail on Sunday’s story. But Eady J is not alone.

Mr Justice Blackburne is another judge taking a hard line on privacy.

He followed Eady J’s lead in his judgment in HRH Prince of Wales v Associated Newspapers, which came a few months after McKennitt.

Blackburne J found that Article 10 of the HRA, which affirms the freedom of the press, “carries responsibilities, one of which is preventing the disclosure of information received in confidence”.

The result was that Associated Newspapers had to compensate the prince for printing excerpts from his diary.

The House of Lords
Those trying to enforce privacy law have another ace up their sleeves: the House of Lords.

The Lords – in particular Lord Hope, Baroness Hale and Lord Carswell – have followed the High Court by asserting privacy or freedom of expression.

The three Lords formed the majority in the case that Naomi Campbell brought against the Daily Mirror and stopped McKennitt’s journey to the Lords.

With 11 Lords of Appeal sitting in the House on a permanent basis, the chances of those three judges sitting together on those two cases have been calculated as only one in 27,225. But enough to strengthen the will of pro-privacy judges in lower courts.

Adam Cannon, group litigation adviser at Associated Newspapers, says: “It depends on the type of bench you get. You could be lucky or not, but I can’t think of many recent pro-media decisions in the Lords.”

The change in attitude to privacy has shaped the very nature of the High Court’s disclosure rule, as well as big cases with household names.

In October last year the Law Society blocked new court rules that would have made particulars of claims available to the public. The rules would have applied retrospectively, revealing information that was disclosed privately.

Mr Justice Irwin granted the emergency injunction, with Mr Justice Keith upholding it, despite challenges from a consortium of newspaper lawyers.

The dispute showed that the courts will use the principles of new privacy rules in their everyday workings.

With the bench keen on emphasising privacy over freedom of expression, the press will have to take a more cautious approach to what it publishes and consult their lawyers more often.

On the other side, claimants are in a better position to negotiate settlements, with the threat of expensive court actions becoming a powerful stick with which to beat the media.

Christie-Miller says: “The courts are taking a liberal view in implementing Article 8 privacy rules, extending them to the benefit of the claimants.

“These things wax and wane. But it does mean now that when you’ve been given notice of a story and you say to a newspaper that they shouldn’t publish it, you’re in a much stronger position.

“You know that if push comes to shove then you can get an injunction and you have slightly more persuasive power.”

The developing trend will make life harder for newspaper lawyers.

“The decisions of the courts are creating stricter laws on privacy, with the exception of the Lord Browne decision, which is damaging the public’s right to know,” says Cannon of Associated Newspapers. “We always have to uphold the freedom of the press because this is the public’s right to know. We have to be very careful where we draw the line between the right to know and privacy. Some judges can have a very strange view of what’s in the public interest.”

The judiciary’s stance is encouraging lawyers to use privacy as a way to get injunctions in cases where libel would have been the only option previously.

Some see Lord Browne as an example. Cannon says: “In Lord Browne there was no realistic route to obtain an injunction in libel because of the 19th century case of Bonnard v Perryman, so they had to frame their argument in privacy.”

The question of what should and should not appear in the press has been discussed for centuries and will continue to be for centuries to come.

But in the current legal environment, key cases have swung the balance in favour of the right to privacy over freedom of expression.

It is the UK judiciary that is taking the most active role in that shift. And Eady J is at the centre of it.

Five key cases

Lord Browne v Associated Newspapers, 2007
Eady J decided BP’s shareholders had the right to know that Lord Browne had lied in court. But what they did not need to know were details of his personal conversations with ex-boyfriend Jeff Chevalier, which remain private.

McKennitt v Ash, 2005
One of the first real tests of Article 8. Eady J went through a number of passages from an exposé of singer Loreena McKennitt, deciding on each one whether it breached privacy rules. The result? A win for privacy.

Prince of Wales v Associated Newspapers, 2006
Blackburne J weighed up Articles 8 and 10 of the Human Rights Act and found that the former was stronger than the latter in the case of publishing the prince’s diary.

Douglas v Hello!, 2007
The Lords’ decision on Douglas has given celebrities greater control over their images and the way they are portrayed in the press.

Campbell v MGN, 2004
The Lords found that the photographs of Naomi Campbell attending a Narcotics Anonymous meeting had a far greater effect than just words and so had invaded her privacy.

The judges’ spectrum

Different judges have shown different stances on the media. This is how it stands so far.

The jury
Although privacy cases do not go before a jury, defamation disputes often do. Most media practitioners see juries as likely to be more sympathetic to the claimant rather than the press.

Mr Justice Eady
Seen as a key player in the development of privacy law, Eady J has ruled on a number of landmark cases that have swung the balance in favour of the claimant. Eady J was tough in McKennitt, but softened slightly in Lord Browne.

Mr Justice Blackburne
In HRH Prince of Wales v Associated Newspapers, Blackburne J decided that Article 10 does not give the press free rein to delve into individuals’ private lives.

Mr Justice Lindsay
Lindsay J is thought by many to sit in the middle of the media spectrum. He ruled on the Hello! case in the High Court and made it clear that the lack of a parliamentary act on privacy was increasing the pressure on the courts to make one through case law.

Mr Justice Tugendhat
Tugendhat J is often considered to be on the other side of the spectrum to Eady J and Blackburne J. Some consider Tugendhat J to emphasise the freedom of the press in his interpretation of media law.

it’s all down to the judges’ discretion. And the man driving privacy law? Mr Justice Eady