By Mike Dodd
The freedom of the press has triumphed in privacy cases since the the Human Rights Act came into effect, the Lord Chief Justice told journalists and media law specialists.
“There is no doubt at all that the Human Rights Act coming into law was a matter that worried journalists – they saw that it could interfere with their professional integrity,” he told the launch of the 17th edition of McNae’s Essential Law for Journalists last Friday.
“But it is my belief that far from doing that, actually the HRA, drawn as it is, is a beneficial change of which journalists really need to have no fear.
“The difficulty about human rights is that they are not certain and they do require the court to perform a balancing act. I suspect, if I was a journalist, I would like my McNae to be absolutely specific as to what you can and can’t do.”
That was not possible under the human rights legislation – but it also had not been possible before the act came into force.
“I think that what the coming into force of the HRA did was to accelerate a process which was happening anyway,” Lord Woolf continued. “But if you look at the cases the courts have decided, you will see that the freedom of the press, I believe, has triumphed.
“It is, first of all, absolutely clear now that a real case has to be made out before any interference by injunction restraining publication will be granted, and that is most important because nothing is more frustrating to a journalist or a paper than to have a good story and not be able to publish it.
“The courts now, as I see it, really have to be satisfied that there is a good case for restraining publication before they will interfere.
“In the case involving a footballer and his girlfriends, I tried to set out about 12 principles which the courts should adopt, trying to make the law a little bit more certain in the area of granting prior restraint injunctions.
“The message that I was giving was that it may be right that there is no great interest in what a B-grade footballer does in his spare time. But I was saying really that’s not the right test. What is the right test is whether there is justification for issuing an injunction.
“I was saying, even though it may be of limited public interest and really is of salacious interest, there must be some reason to stop it, and I was indicating that was an important approach because the courts should not be arbiters upon what the public want to read. The public should be able to decide themselves.
“And if there isn’t good ground for granting an injunction, to restrain it because you don’t like the treatment a particular newspaper would give the subject was, I was suggesting, wrong.
“The purpose of the judgment was trying to prevent future applications which are harassing to be made when there was no real basis for making them, and I think that is supportive of the position of journalists.
“I think again the same thing could be said for the [Naomi] Campbell litigation. I think it can be said again in regard to the Hello! magazine litigation. The court was straining to find the right balance, and of course the result in both the last two cases to which I have referred were to some extent blurred.
“There was partial success, but what the court was doing was exercising a sense of proportion, and that I believe is extremely important. It is actually inherent in most of the provisions of the HRA that there should be proportionality. Article 10 – freedom of expression – and Article 8 – the right to privacy – are there in the European Convention, and what one has got to do in performing the balancing act is say, would granting injunctive relief in this situation be an appropriate and proportionate response to the situation as a whole, taking into account all the circumstances?”
lMcNae’s Essential Law for Journalists, 17th edition, published by LexisNexis Butterworths, price £14.95.