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August 1, 2008

Time to make sure the facts really do back the story

By David Banks

If you read lawyers’ reaction to the Max Mosley verdict last week it was clear why this issue would run and run.

Their opinion on what the case meant varied from ‘no change, business as usual’to ‘the sky is falling in”, often dependent on the colour of the masthead the particular lawyer represented.

This divergence of opinions means that further battles over privacy are inevitable as claimants and defendants will not find it difficult to obtain legal views that they have a cast iron case/defence.

But with Mr Justice Eady insisting his judgment was no landmark ruling, what should journalists do now?

Privacy has been with us for some time. The right was enshrined in the European Convention on Human Rights and enacted in the Human Rights Act. But without an actual Privacy Act, the courts have been left to enforce that right using laws of confidentiality, which have been in existence for many years.

What the Mosley case has certainly changed is potential claimants’ awareness of the law. Because of the nature of the story, the column inches devoted to the case must mean the pool of potential privacy litigants out there just got bigger.

It is doubtful that, on the facts, this case changes the way the courts enforce privacy in any meaningful way. There is still a defence of public interest in such cases, but with their star witness unwilling to testify, and the photographic evidence failing to prove the accusation of a ‘Nazi-style’orgy, the News of the World was unable to establish that defence.

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Mr Justice Eady has said the judgment does not threaten serious investigative journalism that better engages the public interest. However, if as a result of this more people go to court, or threaten to do so, on the basis of alleged breach of privacy, newspapers without the deep pockets of News International might not be willing to contest such actions, and so some stories will go uninvestigated and untold.

Furthermore, while injunctions to prevent publication are not available in libel actions, they are for breach of confidence in privacy proceedings. If, in the Mosley case and others, we are seeing a piecemeal development of the law of privacy, then such injunctions may become more frequent and possible easier to obtain.

If you are a journalist working on a story which involves the revelation of information obtained in private and confidential circumstances, you need to be sure that you have better proof that the story is in the public interest than the NoW had.

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