Media lawyers hit back at Dacre's attack on Justice Eady

Media lawyers have accused Daily Mail editor Paul Dacre of being shortsighted in his attack on High Court judge Mr Justice Eady when he branded him ‘amoral’, and said that it is not up to tabloid editors to be the arbiter of morality.

In the opening lecture at the Society of Editors conference in Bristol on Sunday night, Dacre said Mr Justice Eady had been given a ‘virtual monopoly’ on hearing libel and privacy cases and said his rulings against the press jeopardised its role in holding people to account.

In July this year, Eady ordered that the News of the World pay £60,000 in damages to motorsport boss Max Mosley after it ran a front-page splash about his “sick” orgy with five prostitutes.

Dacre attacked this decision, saying: ‘What is most worrying about Justice Eady’s decisions is that he is ruling that – when it comes to morality – the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being ‘amoral’.”

Rod Dadak, partner and head of defamation at law firm Lewis Silkin LLP, said the attack on Mr Justice Eady showed a serious lack of analysis by Dacre, and said that a judges’ interpretation of morality is largely dictated by society.

He said: ‘Far from being quality journalism and exposing something that was of considerable public interest, it was nothing of the sort. It was a newspaper selling sex for money. How moral is it for the NoW not even to pay the agreed price to its informer on the grounds of the credit crunch?

“To try to blame a High Court Judge for decisions which Dacre wrongly attributes to the Judge’s improper or ubiquitous approach does a great disservice and is misconceived. The suggestion that Mr Justice Eady has been ‘arrogant’ and ‘amoral’ – words used very deliberately by Dacre – only serves to illustrate how very much out of touch he is with the difficulties faced by judges and how necessary it is for him to read Mr Justice Eady’s judgments in full.”

The law should be neutral

Stephen Loughrey, who trained as a journalist with the BBC before becoming a solicitor at media law specialists Carter-Ruck, said that Dacre is right in the sense that the ‘law is neutral”, but that is how it should be.

‘Prurient moralising has no place in a court’s decision making process,’he said. ‘In today’s society few would disagree that those engaged in sexual relationships with other consenting adults are entitled to a reasonable expectation that the details of those relationships will not be published to the world at large. It is not the role of the court to act as an arbiter of taste, decency or morality.

‘Neither, many would argue, is it the media’s role to expose what it perceives to be digressions from standards of morality and decency. The irony of tabloid editors and journalists (particularly from the Daily Mail, with its destructive version of morality) considering themselves qualified to act as the arbiters of the nation’s moral standards, is too obvious to warrant further comment.”

Loughrey said that despite Fleet Street’s “vocal protestations” that one judge is placing “undue weight” on Article 8 of the European Convention on Human Rights (right to respect for private and family life) at the expense of Article 10 (freedom of expression) the reality is somewhat different.

He said: ‘While there is no doubt that the law has developed rapidly, it has only moved to redress an obvious imbalance. The current law simply recognises that the right to respect for private and family life is on an equal footing with the right to freedom of expression. Quite rightly, there is no presumption in favour of one over the other.”

Range of judges should hear privacy cases

Emma Woollcott, solicitor in the Reputation Management Group at law firm Mishcon de Reya, said: “Some have argued that newspapers need to publish titillating private information, alongside their analysis of public affairs, in order to keep circulation figures up. Whilst I have sympathy for the argument, and acknowledge that a free press can only exist if people continue to buy newspapers, it is simply not good enough -privacy, once lost, is gone forever.

“That said, it is concerning that any new line of precedent should be developed by a single judge. In order to reduce criticism along the lines that Paul Dacre has raised, particularly as privacy cases are often high profile and often highly controversial, and to enrich this evolving jurisprudence, the Court should ensure that they are heard by a range of judges in the Queen’s Bench division.”

Leading QCs defend Eady

Four leading QCs who between them have acted in most of the high-profile libel cases of recent years have also defended Mr Justice Eady in a letter to The Times.

In a letter signed by Desmond Browne, QC (chairman-elect of the Bar Council), Adrienne Page, QC, Andrew Caldecott, QC, and Richard Rampton, QC, the four condemn the ack by Dace which was supported by The Sun, and said it ‘cannot stand unanswered, not least because the judge is unable to respond publicly to such criticism”.

They point out that Mr Justice Eady’s rulings are “subject to review by higher courts” and insist that he was “doing no more than applying the law” they also reject the notion that he wants to suppress media freedom of expression.

Graham Dudman, managing editor of The Sun, told BBC Radio 4’s Today programme: ‘The issue here is that [Mr] Justice Eady is unelected and unaccountable. Parliament has not made these decisions, one man has.”

The Sun’s editor, Rebekah Wade, agreed with Dudman. She said: “I think a lot of people will be surprised that he sat alone in the Max Mosley case because there’s no jury in privacy cases. As a paper we agree with everything [Dacre] said. It is long overdue – in a democratic society with a free press it cannot be in our interest that one solitary judge is setting legal precedent.”

Loreena McKinnet’s view

Commenting on Press Gazette’s website, Loreena McKennitt, the Canadian folk singer mentioned in Dacre’s speech, said it was clear from his comments that Dacre had not read Mr Justice Eady’s comments on her case.

Dacre said: ‘Again, it was Eady who found in favour of a Canadian folk singer called Loreena McKennitt, who had objected to the publication of a book about her by a former adviser, Niema Ash. Ms McKennitt did not claim that the book was in any way untrue, merely that it had infringed her right to privacy. Never mind Ms Ash’s right to freedom of expression.”

‘And it is Eady who, almost unnoticed here, has the distinction of having provoked the US Congress – in what’s dubbed the Libel Tourism Bill – to consider making English libel judgments unenforceable in America.”

MkKennitt responded: ‘The fallacy Dacre would like to propagate is that I did not challenge the contents of Ms Ash’s book. Like many, (but not all) of his media colleagues on both sides of the Atlantic, it is clear he has not spent much time reading Eady J’s judgment of this trial.

‘Of the many matters which were challenged in Ms Ash’s book , the most interesting was with respect to a property dispute. Central to Ms Ash’s ‘story’ and her public interest defence, it was discovered that Ms Ash had ‘beefed up’ 8 witness statements in order to establish a false case against me upon which she would breach my privacy and leverage my reputation through media interest. (A fact yet to be reported by any media ) Needless to say, her public interest defence failed. Mr Justice Eady speaks to this in para 106 to 128 of his judgment.

‘As the editor of the Daily Mail and editor-in -chief of the Mail group and, if I am correct in understanding, now chairman of the Press Complaints Commission‘s Editor’s Code of Practice Committee, one can only hope Dacre will employ greater veracity of fact and balanced reporting than illustrated in his speech, clearly intended to inform or influence other editors.”

…3.30pm update…

Niema Ash hits back

Niema Ash has also contacted Press Gazette and denied the suggestion that she was in anyway involved in “beefing up” witness statements.

She said: “I want to make it clear that I had never even seen the witness statements until they were completed and had nothing to do with their composition. Most of the witnesses were friends of Ms. McKennitt’s and would never have allowed words to be put in their mouths. No witness ever said that their statement had been ‘beefed up’. This is pure conjecture.”

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