Mr Justice Eady on why judges need to create a privacy law

Whenever I am asked to say a few words about privacy, it always seems to me that the natural starting-point has to be the era that we can now look back on as our nadir on the Article 8 front – namely the 1980s and early 90s.

This was a period in which there was such a level of tabloid intrusion into private lives that it gave rise to significant public disquiet. One example will suffice. There was the use of long distance photography to intrude through a hospital window upon the bed of a TV presenter called Russell Harty as he lay in extremis. Public concern was such that the government felt obliged to do something about it. As often happened in these circumstances, it was possible to kick the issue into the relatively long grass by appointing a committee.

And so Douglas Hurd, in July 1989, set up a committee under the chairmanship of the late David Calcutt QC, with its own premises and staff, to investigate the evidence. As it turned out, this took nearly a year and the report was presented to the then Home Secretary in June 1990.

In the midst of their deliberations, in January 1990, a team from the Sunday Sport burst in (as you know) on the actor Gordon Kaye, as he lay in his bed after brain surgery, took photographs of him and purported to conduct an interview. This gave rise to court proceedings in which such remedies were claimed as were then available, and it led to the Court of Appeal bewailing the absence of a law of privacy and expressing the hope that there might be legislative change following the committee’s report. The case was reported in FSR 1990.

The immediate recommendation contained in the report was not for legislation at that juncture, because not all the members were in favour of it. What was proposed was the abolition of the ailing Press Council and to give self-regulation a further (supposedly final) chance by setting up the Press Complaints Commission. Nevertheless, it was acknowledged that legislation for the protection of privacy by means of a statutory tort would be possible. The view was not taken, as many had been suggesting up to that time, that these values were too vague to reduce into legislative drafting.

The two lawyers on the committee (in addition to the Chairman) were John Spencer of Cambridge and myself. We worked out a possible statutory tort that would, if it proved necessary, be workable in practice. It obviously provided for a public interest defence, along similar lines to that contained in the draft PCC Code, attached to the report, which was broadly adopted by the PCC when it came into existence in January 1991.

The statutory tort would in some ways have been less restrictive of the media than the law of privacy as it has subsequently developed. For example, it would have excluded anything touching on the conduct of a business, trade or profession, and it would have been directed purely at the protection of personal life. It would also have excluded anything occurring in a public place. It now seems rather old-fashioned and simplistic.

We were, rather naively perhaps, attempting to achieve certainty and predictability. Anyway, that was not adopted by the legislature. Instead, ministers were heard to say at the time, on more than one occasion, that it was best to trust an independent judiciary to develop the common law by reference to Articles 8 and 10 of the European Convention. That is not a view one hears much about these days, since in certain quarters the process is thought to have gone too far in the wrong direction. It has become fashionable to label judges, not as independent, but rather as “unaccountable”. Following measured representations from the Daily Mail, the Justice Secretary has recently announced that something called a statutory “nudge” may after all be required.

But back to 1990. What ministers meant, at the time, was of course that judges should develop the existing law of confidence as largely defined by Coco v Clark and, most recently, in the Spycatcher case in the House of Lords: Att. Gen. v Guardian (No 2), in which Lord Goff, in particular, had referred to what he called the “limiting principles”, whereby obligations of confidence could be overridden if, for example, the public interest required it, or the relevant information was so far into the public domain that there was nothing confidential left to protect, or where the information was so trivial as not to justify the intervention of the law.

For the next decade or so, any such development was rather confined by the traditional perception that duties of confidence could only be enforced in the context of a pre-existing relationship, recognized either in equity or in contract.

The law did extend so far as to acknowledge that, if confidential information was leaked to a journalist by someone who was subject to such a duty, then the journalist too could be regarded by extension as similarly constrained. But there were some who argued that, e.g. in a case like that of Gordon Kaye, a corresponding duty should be imposed where it was obvious just from the intimate nature of the information itself, or from the circumstances in which it was purloined, that there should be such a duty. In other words, it was artificial to insist upon the requirement for a pre-existing relationship.

Some of you may recall, in August 1992, that the Duchess of York ran into a spot of bother while on a continental holiday with a Texan accountant, who was described as her “financial adviser”. Some photographs were obtained of them lying by the pool, from a distant hillside through a telephoto lens, while the adviser was taking a particularly close interest in her toes.

I was instructed to go over to see the vacation judge, who happened to be David Latham, to seek an injunction. I argued that the information contained in the photographs was plainly so intimate and personal, and that the method by which it had been obtained so intrusive, that it must be obvious to any reasonable onlooker that it should be treated as confidential – just as much as if the photographs had been taken and supplied by a disloyal employee. That was rejected on the basis that I was behaving as though there was already a law of privacy in place. That there was not had been definitively stated recently by the Court of Appeal in the Gordon Kaye case.

So we remained at an impasse and any judicial development, as rather encouraged by ministers at the time, had at that point hit the buffers.

It is probably fair to say that little happened until after the Human Rights Act came into effect in 2000 and, in particular, until May 2004 when the House of Lords addressed the facts of the Naomi Campbell case (decided 3-2 on the actual result).

What proved to be of special significance was the recognition of two principles in particular. First, that the law might enforce a citizen’s reasonable expectation of privacy in respect simply of personal information (i.e. regardless of any pre-existing relationship of confidence). Second, such a right could be enforced horizontally by reference to Article 8, as between citizens. There was opened up the intriguing possibility of claims by an individual citizen against a newspaper or media group. that was clearly going to make a significant difference, although it was not necessarily spotted at the time by editors just how significant.

Their Lordships sanctioned in that case, and a year later in Re S (A Child), what was called the “new methodology” for resolving conflicts between competing Convention rights. The scale of this innovation is now reflected in the outrage increasingly voiced in media commentaries.

The methodology has the following consequences:

(1) No one Convention right can take automatic precedence over another (so that freedom of speech, for example, is not accorded the overwhelming priority that the common law had given to it hitherto – as in the so-called rule in Bonnard v Perryman).

(2) It is for judges to weigh up the competing interests, on the particular facts of the case, and to decide if there is a reasonable expectation on the part of the individual claimant in respect of the particular information, and, if there is, to carry out the “ultimate balancing exercise” to decide whether there is nonetheless an overriding public interest in according priority to someone else’s freedom of speech.

(3) This obviously means that generalities will never provide a complete answer, e.g. that the particular claimant is a “public figure” or a “role model” and can therefore expect little or no privacy or, again, that he or she has sought publicity in the past and is therefore to be regarded as fair game by the media.

(4) This will often involve the judge investigating the defendant’s motive for using the right of free speech and grading those motives (as between at one extreme e.g. “political speech” and at the other what has been called in the House of Lords “tittle tattle”). This is a fundamental shift in our approach to free speech.

(5) The new methodology involved, and particularly at first, a degree of uncertainty in the law and in an editor’s ability to judge the likely lawfulness or otherwise of a proposed course of conduct.

(6) To add insult to injury, it has been said several times in the Court of Appeal that the balancing exercise is one in which the Court of Appeal is unlikely to interfere if the judge has asked himself or herself the right questions – and, let us face it, the questions to be asked are so straightforward that it would be quite difficult to get them wrong.

(7) So, there being little opportunity for an appeal, the media have nowhere to vent their frustrations other than by abusing the referee in the particular case. Some of you may know that certain judges have come under increasingly hysterical attack, in the media, simply because it is easier than going by way of appeal. One in particular has been accused of “moral and social nihilism”, “arrogance”, “immorality”, “amorality” and of favouring privacy because he is “painfully shy”: and of combining all that with being “a frozen haddock”. This is natural, if there is no other way of letting off steam. I think it simply has to be recognized as an inevitable consequence of adopting the balancing approach and the “intense focus” on the particular facts of the case.

It always seemed natural to me that if a law of individual privacy were to be adopted and enforced, that should be by way of the legislature. In fact it has happened at one remove as an inevitable consequence of the enactment of the Human Rights Act. Yet even if Parliament had legislated more specifically, whether for the protection of privacy or to give a “nudge” in the opposite direction, it could only be expressed in general terms, such as contemplated in the Calcutt Report, or by simply setting Article 8 values alongside those of Article 10.

It would be hopeless to try to get down to the level of micro-management and cater for every situation that is likely to come before the courts. One never ceases to be amazed by the extraordinary range of scenarios that present themselves. No legislator could possibly think them up in advance. So, however it is done, there is no other practical way of developing a means of protecting Article 8 rights than by leaving judges to weigh up the competing interests of the parties concerned.

It is true that there remain some important uncertainties of principle confronting courts and journalists at the moment. For example, will the rule in Bonnard v Perryman survive scrutiny in the light of the Strasbourg jurisprudence, given that its effect is to build in an automatic priority for Article 10? Again, what is the position in this jurisdiction about photographs taken of celebrities in public places? Is the Princess Caroline case to be taken at face value? Will it only be permitted if it makes a contribution to a public debate? The outcome could have a far-reaching impact on paparazzi and tabloid culture following the Court of Appeal’s inevitably tentative pre-trial decision in Murray v Express Newspapers (the J K Rowling case).

On the other hand, in an amazingly short space of time, a whole raft of sub-principles has begun to emerge from the relatively few cases decided over the last 3-4 years. Such unusual situations have presented themselves to the courts, with so many facets in each, that quite a lot of uncertainties have already been ironed out. There is only time for a few examples:

(1) First, in the context of personal information, it will not necessarily be an answer to say that it is trivial, or that it would fail Sir Robert Megarry’s Coco v Clark test of having about it the “necessary quality of confidence”. If it is intimate and personal, it may still be protected, as the Court of Appeal has confirmed even in relation to the furnishing and domestic hygiene arrangements of Ms Loreena McKennitt in McKennitt v Ash.

(2) The fact that you have given interviews or otherwise gone public about aspects of your private life does not mean, in itself, that the relevant “zone” of your personal life is therefore up for grabs generally by others who may wish to explore it or speculate upon it. You can to an extent choose how far to lift the veil: see Douglas v Hello! and McKennitt v Ash, in which Richard Buxton said: “If information is my private property, it is for me to decide how much of it should be published”.

(3) It soon became established in McKennitt and in the Lord Browne of Madingley case, also in the Court of Appeal, that a remedy will lie in respect of intrusive information, whether it is true or false. It follows that a claimant is not forced to go through an article about (say) his or her sex life or his or her state of health, in order to reveal that some aspects are true and others false. That would defeat the object of the exercise. Any speculation or factual assertions on private matters, whether true or false, can give rise to a cause of action.

(4) Where the subject-matter is inherently private, such as sexual behaviour, it is not for judges to refuse a remedy on grounds of distaste or moral disapproval, or to accord protection on a graduated basis, according to how conventional or unconventional the sexual activity may be. There is no logic to the stance taken a few years ago (in A v B Plc) that marital relations are entitled to greater privacy protection than a footballer’s one night stand. (It was not only this that did for the Claimant, of course. One of the more curious findings was that he was a role model – because he played for Blackburn Rovers.)

(5) Another argument that succeeded in that case was that the two young women concerned should be allowed to tell their story (albeit “salacious”). The case of A v B Plc has subsequently been described in the Court of Appeal as in certain respects incompatible with the Princess Caroline case. It will not now necessarily avail a defendant to say “I am only recounting my own life story and so I can mention the claimant because he or she is part of it”. It was an argument that was tried and failed in McKennitt v Ash. In those circumstances, it is still necessary to carry out the balancing exercise between competing interests. One person’s life story cannot be uninhibitedly told if it encroaches, to an unacceptable degree, on another person’s reasonable expectation of privacy. This clearly has implications for kiss and tell stories.

(6) I just have time for one more example. I cite it simply because the name of the case is one of my favourites: X & Y v Persons Unknown [2007] HRLR 4. It has become quite common for celebrities to seek an injunction urgently of the John Doe variety – against persons unknown. Typically, they will have got wind from a journalist of a story in the offing, based on revelations by an unidentified friend or acquaintance. If his John Doe injunction is then served on any newspaper he suspects of involvement, that can be an effective way of spiking the plans of the unknown culprit. That is because of the Spycatcher doctrine, whereby even though the newspaper is not a party, it can still be liable for criminal contempt if it publishes the story knowing of the prohibition against the “persons unknown”. In X v Y a procedure was worked out of giving notice to potential media respondents to give them a chance to be heard on the scope of the order. That is appropriate because their Article 10 rights are potentially involved. They are notified of the information which is to be the subject of protection by means of a confidential schedule attached to the order or draft order. So far that seems to be working pretty well.

Things now seem to be settling down remarkably quickly after a period of minor upheaval. The commentator Roy Greenslade only three weeks ago claimed that he had seen one Sunday tabloid “turning the corner” and “cleaning up its act”. He thought the editor showed signs (for whatever reason) of moving away from sleazy stories originating in the bedroom. Whether he is right or not we shall see.

From the coal face, however, it does seem that there are now very few privacy cases being contested. Often when there is the notification and the threat of an injunction, the journalists and in house lawyers will give an undertaking, because they are able to spot very quickly (especially in the light of the Strasbourg approach) what is and what is not within bounds. The rarity of contested claims is largely because there are so few stories where there is any hope of a public interest defence (as was argued, with at least partial success, in Lord Browne of Madingley).

So we have come, for good or for ill (and it is not for me to say which), a very long way in a short space of time. Gordon Kaye and Russell Harty would now obtain a remedy so easily that the newspapers would know that such conduct was out of bounds – without even having to ask a lawyer.

This speech was delivered in February to the Intellectual Property Lawyers’ Association and has been submitted in evidence to the House of Commons Culture Media and Sport committee.