Feature: Tabloid blues – privacy and the press

Daily Mail chief Paul Dacre’s speech to the Society of Editors, in which he took Mr Justice Eady to task for his privacy rulings, has laid bare the simmering
tensions between certain papers and the judiciary.

Feature: Tabloid blues - privacy and the pressThe 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.

Dacre v claimant media lawyers

It has to be said that there is no love lost between Dacre and claimant media lawyers. Here are a few choice words from lawyers embroiled in recent high-profile cases.

• Steeles Law litigation head Dominic Crossley, Max Mosley’s lawyer

Mr Dacre’s extraordinarily personal attack upon Mr Justice Eady sits uneasily with his argument that newspaper editors should be the arbiter of national morality. Mr ­Justice Eady did not create the Human Rights Act, Parliament did.

The fact remains that the press may still invade the privacy of an individual safe in the knowledge that they will successfully defend a claim if they can show that there was a proper public interest to be served by publication. For Mr Dacre, that is not enough. He wants his journalists to be free to invade privacy where it assists his dwindling newspaper sales and where an individual offends his personal moral standards.

It is a frightening prospect. If we disagree with Mr Dacre’s moral agenda, are we entitled to install cameras in his bedroom? I think not.

• Gideon Benaim, Schillings, The Lawyer’s Partner of the Year

It was not Eady J but the Government that brought privacy laws into the UK.

Also, the most important significant case on privacy to date was Naomi Campbell v MGN. That went all the way to the House of Lords and Eady wasn’t even on the case at first instance. It was Morland J. In fact the key cases, including McKennitt and Douglas, have all gone to higher courts than the Mosley case.

Privacy laws do not stifle real investigative journalism that is in the public interest. Ultimately, a person’s private life is not, save in exceptional circumstances, something which ought to be published to the world at large.

Mark Summerfield, Solomon Taylor & Shaw disputes head, Big Pictures’ lawyer in the JK Rowling paparazzi privacy case

It is more than four years since the Naomi Campbell case, which saw our most senior judges putting an unprecedented amount of weight on privacy issues. Fast forward to 2008 and the David Murray case, where the privacy of the 19-month-old son of JK Rowling was in question and alarm bells rang for the paparazzi.

In the course of the case, the Court of Appeal examined Campbell and the test for a ‘reasonable expectation of privacy’. What appears to be clear at this stage is that every case will depend on a precise analysis of the facts.

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.

Dacre v TheLawyer.com posters

Dacre’s speech was long and well written, but the opinions expressed in it have had many lawyers up in arms. A section of it is reprinted below, together with the most piquant comments on TheLawyer.com from those who disagree with his line, but read the whole thing here.

But surely the greatest scandal is that, while London boasts scores of eminent judges, one man is given a ­virtual monopoly of all cases against the media, enabling him to bring in a privacy law by the back door.
English common law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression.

The idea that we should take lessons in public morals (or anything associated with decency) from that loathsome rag known as the Daily Mail is risible. Its narrow-minded, xenophobic and nasty views are a disgrace to the British press and the UK as a whole. On a lighter note, Eady’s judgement was in the finest tradition of judicial archness – his description of Mosley having his bottom shaved by his lady friends gave me one of the biggest laughs I’ve had for some time.
Date: 11 November 2008 @ 05:06
From: Elitist

Mr Dacre appears to have forgotten/overlooked the fact that there is always a public interest defence to a claim for invasion of privacy. In other words, if the purpose of the article really is to expose wrongdoing in the public interest, the press need have nothing to fear from the laws of privacy.
Date: 10 November 2008 @ 16:25
From: David Engel, Addleshaw Goddard

I think his stance is disgraceful and arrogant, effectively saying: ‘I should be able to spy on anyone’s life and publish any detail I so choose in order to sell more papers, and anyone who stops me doing this is wrong.’
Date: 10 November 2008 @ 15:24
From: Ian