Justice Eady defends judge-made privacy law

Mr Justice Eady has publicly defended the way in which judges have developed the law of privacy.

The senior High Court judge also argued the current rarity of privacy claims contested by the media was evidence that journalists had changed their ways.

Sir David Eady, who has been pilloried by some editors for developing what they see as a backdoor judge-made privacy law, made his comments in a rare public speech to the intellectual Property Lawyers’ Association.

Eady presides over most of the major libel and privacy cases involving the media heard in London.

Daily Mail editor Paul Dacre attacked him during a speech in November last year in which he said: “The British press is having a privacy law imposed on it…from the arrogant and amoral judgments of one man.”

In July this year, Eady effectively curbed the right of tabloid newspapers to publish kiss and tell stories when he ordered the News of the World to pay £60,000 after it published photos and video revealing motorsport boss Max Mosley’s sado-masochistic sex session with five prostitutes.

Eady’s speech was made back in February but has only now come to light after being submitted to the Commons Culture Media and Sport select committee’s investigation into press standards, libel and privacy.

In it he said that in the 1980s and early 1990s there was “significant public disquiet” about “tabloid intrusion into private lives”.

He cited the example of the use of long-distance photography to picture TV presenter Russell Harty in his hospital bed and the 1990 case where journalists from the Sunday Sport trespassed into the hospital room of actor Gordon Kaye, photographing and interviewing him despite the fact that he was dazed and recovering from brain surgery.

Eady said little was done to provide remedy for such intrusions until the Human Rights Act came into effect in 2000 when its Article Eight clause outlined the need to respect an individual’s privacy and family life.

Defending the way the law of privacy has developed from this point he said: “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… 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…

“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 Eight rights than by leaving judges to weigh up the competing interests of the parties concerned.”

After outlining a number of recent cases in which the law of privacy has been refined he said: “Things now seem to be settling down remarkably quickly after a period of minor upheaval.”

He said: “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 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.

“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.”

To read the full text if his speech click here:: Mr Justice Eady’s full speech.

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