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Privacy law stops stories before they are published, says Justice Eady

Newspapers are refraining from publishing privacy-invading stories because of the effectiveness of an emerging law of privacy with its roots in the European Convention on Human Rights, Britain's leading judge in privacy cases has said.17 Aug 2009

In a speech to lawyers Mr Justice Eady has said that privacy law was "settling down remarkably quickly" and that newspapers dare not publish stories that they would have in years past.

"From the coal face … it does seem that there are now very few privacy cases being contested," he told the Intellectual Property Lawyers' Association. "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," he said. The speech was given in February this year but has only just been published.

Mr Justice Eady was the target of a vitriolic attack by Daily Mail editor Paul Dacre earlier this year. Dacre criticised the fact that privacy law had come not through primary legislation but from the Convention and was interpreted by judges, and particularly by Mr Justice Eady, who has ruled in many privacy cases.

The judge told lawyers, though, that when he was a lawyer acting in privacy cases in the early 1990s it was seen as politically desirable that politicians not be the ones ruling on privacy laws that would affect them and their careers.

"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," he said, referring to the articles relating to privacy and to free speech.

"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'," he said.

Mr Justice Eady said that he was involved in drawing up a possible law on privacy, but that the political will was not there to enact it, and no real progress was made on the protection of privacy until the Human Rights Act enshrined the Convention in UK law in 2000.

In the late 1980s and early 1990s Mr Justice Eady said that the UK media had reached a "nadir" or privacy invasion when pictures of television presenter Russell Harty on his deathbed were published and journalists trespassed in hospital to secure a snatched interview with and pictures of actor Gordon Kaye in the immediate aftermath of brain surgery.

"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," he said. He recalled that he was asked to try to prevent pictures being published of Sarah Ferguson, the Duchess of York, on what appeared to be a romantic holiday with a Texan financial advisor.

"I was instructed to go over to see the vacation judge, who happened to be David Latham, to seek an injunction," he said. "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," he recalled.

With the Human Rights Act came the right to a private and family life, the article which Mr Justice Eady and others have used to protect people's privacy in a series of court rulings beginning with a 2004 case involving model Naomi Campbell.

Mr Justice Eady said that the Human Rights Act and the Convention undermined the old principle that free speech rights trumped others.

"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," he said. "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."

He said that there was a high degree of certainty now regarding what could and could not be published, despite the small number of cases through which the law has emerged.

"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 three to four 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," he said.

Mr Justice Eady concluded that the excesses of the coverage of the late 1980s and early 1990s would simply not be possible today.

"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," he said.