Greatest hits of outgoing top privacy judge David Eady

Daily Mail editor came pretty close to libelling the UK’s top media law judge when he made him the chief target of a furious broadside at the Society of Editors conference in November 2008.

Dacre said:

“The British press is having a privacy law imposed on it, which is, I would argue, undermining the ability of mass circulation newspapers to sell newspapers in an ever more difficult market.

“The law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements, words I use very deliberately, of one man.

“I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.”

So it seems fair to say that Dacre and other tabloid editors will be doing cartwheels today at the news that Eady is stepping down as the UK’s top privacy judge to be replaced by justice Tugendhat.

The problem with the developing law of privacy is that judges ultimately have to balance two competing clauses of the Human Rights Act: the individual’s right to respect for their private life (Article Eight) versus the media’s right to freedom of expression (Article 10).

Where the balance shifts depends on the public interest. And what the public in interest is has never been precisely defined, so is largely a matter of opinion.

Is Dacre’s criticism of Eady fair? Let’s have a look at his “greatest hits”:

June 2006: Elton John, The Bald Truth: Eady sided with the Daily Mail allowing it to publish an unflattering picture of Elton John taken in the street which showed the extent of his hair loss.

December 2006: Loreena McKennit versus Niema Ash: This time Eady sided with the claimant and against the publisher and author of the book Travels with Loreena McKennitt: My Life as a Friend. This was seen as a major privacy landmark because Eady ruled that Ash had a duty of confidence to McKennit, as her friend, and should not have revealed details about personal and sexual relationships, McKennitt’s feelings about her fiance, who drowned in 1998, as well as details of her health and diet.

May 2007: BP boss Lord Browne versus the Mail on Sunday: This time Eady sided with the press, allowing the MoS to publish details about Lord Browne’s previously secret homosexual relationship.

July 2008: Max Mosley versus the News of the World: This was the big one. Max Mosley may have been the married boss of one the biggest sports in the world – but what he did with five paid dominatrices behind closed doors was his own business, Eady ruled.

Looking at these judgments on balance, it seems the press crticism of Eady is not all that justified. Eady would argue that all he has done is interpret the law as laid down by the Human Rights Act.

His successor Tugendhat appeared to fire the starting gun on a whole new series of tabloid kiss and tells in February when he overturned footballer John Terry’s injunction against the News of the World and thus allowed it to reveal his alleged affair.

So at first sight he appears to be more sympathetic to the press in the privacy sphere. But as Eady’s contrasting judgments show – it is pretty difficult to predict where the public interest lies in any particular case, and is largely a matter of opinion for the judge in the case.

Perhaps then, the Coalition is right in trying to codify the privacy law in its new Defamation Act, due out next year, so that everyone can know exactly where they stand.