Eady on privacy: ‘I understand one or two people disagreed with the result of the Mosley trial’

Leading judge Mr Justice Eady set out his views about the developing law of privacy in detail at a speech to mark the opening of a new Centre for Law, Justice and Journalism at City University last night.

His lengthy and detailed speech was in a nutshell hitting back at the suggestion that the UK privacy law has been made by judges (more specifically him) – insisting that all he, and other judges, have done is interpret the European Convention on Human Rights as incorporated into UK law by the Human Rights Act.

He also said that it was futile to draw generalisations from individual cases because privacy is such a difficult thing to pin down that each case must be judged on its own merits.

The whole thing bears reading by anyone who wants to avoid going before Mr Eady, but here are a few extracts I’ve picked out:

Our new human rights environment is conditioned by the European Convention and the Strasbourg jurisprudence. Let us be in no doubt that this is what the government of the day and the legislature wanted when they enacted the Human Rights Act 1998.

Why I say that uncertainty is inherent in this new methodology is that individual judges are required to carry out a balancing exercise between competing Convention rights. This was explained very early on in the legislative process, for example, by Lord Irvine LC on 24 November 1997, when the Human Rights Bill was before the House of Lords.

He said, specifically with reference to protecting privacy, that the law would work more satisfactorily for the very reason that judges would be required to balance Article 8 and Article 10 with a particular focus upon the facts of the individual case….

Of course, it is not always Article 10 ranged against Article 8. Sometimes, the balance will involve other Convention rights. In the context of applying the law of contempt of court, or considering whether to impose restrictions on court reporting with regard to children in family or criminal cases, the court will also have to weigh up considerations such as open justice and the right to a fair trial under Article 6. That is quite common.

Less frequently, Article 2 rights will come into play also. The best known example is that of Venables and Thompson, but there were also the cases of Mary Bell and Maxine Carr, where there was evidence before the court that, if full details of the whereabouts and identities were revealed, their physical safety or their lives would be in danger.

In such circumstances, the state through the judicial process is required to recognise and protect the right to life under Article 2, even though it would inevitably involve restrictions on freedom of speech.

It has been made clear in the House of Lords, in Campbell v MGN Ltd and in Re S (A Child) [2005] 1 AC 593, that this balancing exercise must be carried out not by reference to generalities, but rather by applying an ‘intense focus’to the facts of the particular case. This will generally turn on questions of proportionality.

My own experience, in the context of personal privacy and, for that matter, defamatory allegations, has been that each combination of circumstances is unique. In so many of the scenarios confronting editors and journalists, it simply will not be possible to consult the in house lawyer and expect a clear ‘yes’ or ‘no’ answer. It is known obviously what sort of factors will need to be taken into account. They are conveniently listed in the JK Rowling case: Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at [36], where it was made clear that these include such variables as:

‘â€¦ the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.

That sounds straightforward enough, but because the mix inevitably differs from one case to another, almost infinitely, that statement cannot shed much light on individual outcomes.

This methodology does mean that it will often be difficult for in house lawyers to predict the outcome of any given application for an injunction – not least because they will usually not have the full picture available to them. In any event, it may be quite difficult to anticipate the assessment the judge will make. There is quite often no right or wrong answer. That is integral to the process.

As the Court of Appeal has said on more than one occasion, it is not for an appellate tribunal to second guess the judge’s individual assessment – provided that he or she has asked the right questions: see e.g. Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103. It is inherent in this balancing process that different persons may come up with different answers on the same set of facts. There is often plenty of room for disagreement. That applies at the trial stage as well as at the early point at which an interim injunction is sought.

I understand, for example, that one or two people even disagreed with the result in the Mosley trial.

Because of this margin for personal judgment, it is wise to guard against the drawing of general conclusions from the specific findings in one case. It is pointless, since the methodology is now so widely known, for commentators to highlight the outcome of each case that comes along and to interpret it as anything other than a decision on its own facts, or to extrapolate from it so as to claim the emergence of new principles.

There are actually very few contested privacy hearings nowadays. Over the last 18 months or so, decisions in the field have mostly been made on ex parte hearings, when only one side has been put before the court. In such cases, it is even more unreal to interpret them as giving rise to a change of direction, one way or another, or as creating new principles.”

The principles are stated in the decisions of the House of Lords to which I have referred – supplemented to some extent from Strasbourg. They have remained constant for the last six years.

As I say, desirable or not, that level of uncertainty is unavoidable as the law now stands. Indeed, even if the law were to be changed, the legislature would find it impossible to prescribe in advance a clear answer for each new set of circumstances that crops up. All that can ever be done is to set out principles or rules, or to identify factors to be taken into account (as has already been done, for example, in the JK Rowling case).

There cannot be any method of identifying ready made answers for unforeseeable scenarios that have not yet occurred. No Parliamentary draftsman could have dreamt up in advance the facts of the Mosley case – or at least, if he did, he should have been doing it in his own time. Indeed, this is true of virtually every set of circumstances that has formed the background of any of the well known cases over the last few years.

I suppose it is fair to say that one roving footballer is much like another. I imagine that is why, under soft lighting, confusion can sometimes occur. Even here, however, the combination of individual factors may easily distinguish the solution in one case from that in another.