Fishburn Hedges

In the past few weeks, the question of the rights and wrongs of privacy injunctions and the notorious "superinjunction" and "hyperinjunction" have been the subject of considerable public debate.  So much so that the Prime Minister stated that he was "uneasy" about what he described as "a new sort of privacy law without Parliament saying so".

In the midst of these debates are the seemingly endless examples of gagging-orders being granted in favour of the rich and famous to stop details of their private lives becoming news.  Faced with such a media frenzy, one could be forgiven for believing that there was now a draconian privacy law in force in this country with no democratic mandate and that Parliament should intervene with haste to remedy the situation.  In fact, any such belief would be based on misconceptions.

The right to privacy

Few would surely argue that there should be some form of protection from invasions of privacy.  For example, if one's medical records are stolen or if a newspaper secretes a miniature camera into one's home, most would accept that these are unacceptable actions and that the victim should be able to restrain – if necessary by court order – the use of the information obtained.  Such an essential right to privacy is now backed in our law by Article 8 of the European Convention on Human Rights, which was given domestic force of law under the Human Rights Act 1998.

Of course difficult issues arise as to where to draw the line.  Should an affair conducted between a football star and a prostitute be considered a private matter meriting such protection (or as the law asks, does the individual have a "reasonable expectation of privacy" in such circumstances)? 

But it is hard to see why not.  Sexual matters are the very essence of what people would keep private.  Moreover, many of the injunctions granted this year have involved blackmail and harassment.  One recent case involved photos, threats and the evidence of a risk to mental health arising from publication.  Most people would be sympathetic to the courts seeking to frustrate the activities of blackmailers and harassers.

And there may be other concerns.  In one case recently, the defendant newspaper was barred from reporting on the claimant's sexual affair with a colleague in the entertainment industry.  One of the primary reasons for this was because particular weight had to be given to the likely impact of such a report on a child involved.  Whilst this decision has faced criticism from certain sections of the media, surely few would doubt that protecting children is more important than reporting gossip. 

Freedom of expression

The media respond: what about the right of freedom of expression?  This could be their own right or that of the individuals concerned (usually the woman with whom the famous male had an affair).

Freedom of expression is another important right recognised under the European Convention.  However, it is not always strongly in play in these situations.

Firstly, it is striking how little genuine public interest there is in any of the recent cases.  The tabloid newspapers wish to publish tittle tattle about famous people.  Sometimes in these privacy injunctions they try to suggest that there is a public interest reason for publishing what is no more than gossip.  More usually these days, they do not bother.  The only real reason for publication is the prurient interest of readers in the lives of others and the desire to sell newspapers.  Where there is a public interest, for example when then BP boss Lord Browne was shown to have lied to the court and the interests of BP shareholders were involved, the courts have shown themselves very ready to lift any privacy protection.

Secondly, it is sometimes said that the individuals seeking privacy injunctions are "role models" and that the fact that they have feet of clay should be exposed.  This is evident nonsense.  The individuals concerned are simply famous, not role models.  In most cases, nobody could be said to be taking moral guidance from these people.  In the rare case where a claimant in a privacy case has represented himself as being of some particular moral virtue, he will find it much harder to obtain a privacy injunction, as John Terry found out after he had accepted an award as Dad of the Year before embarking upon an affair.

Thirdly, some point to the right to freedom of expression of the other party involved.  Surely she should be able to tell her story, they say.  Indeed, it has been argued that there is sexism at play here with male judges making orders to protect male stars to the detriment of the women involved. 

But it is not as if the other party has some independent story to tell.  The story is only a story of interest because of the fame of the other party.  It is about the famous person, not about the woman.  Moreover, it is rare that the woman wishes to tell the story out of any sense of public interest or literary concern.  She is almost invariably selling the story for money.  In such circumstances, it is hard to see how the fundamental human right to freedom of expression looms large.

Judge-made law

Another criticism of privacy injunctions being made by judges behind closed doors is that they are applying law which has not been made by Parliament.  Indeed some parts of the media have sought to place the responsibility of the development of privacy law sole on the shoulders of one judge, Mr Justice Eady.

There are a number of answers to this.  Firstly, most law in this country is judge-made law.  The development of the common law by judges is usually (and rightly) celebrated as a corner-stone of our legal system.  Judges have often developed the common law in ways favourable to the media, as they did for example in the last ten years or so in respect of the public interest defence to defamation.  There were few complaints about "judge-made" law then.

Yet as Adam Wagner and many observers have commented, this development has not occurred in a vacuum.  The Human Rights Act, passed by Parliament in 1998, obliges the court to consider the impact of the European Convention on Human Rights in domestic law, and consequently in each decision it makes.  The judges were asked to interpret common law in accordance with the Convention.  They have done no more than that.  It is therefore very much the will of Parliament that has sanctioned this development.  Moreover, it has always been open to Parliament to pass another law abrogating the right to privacy.  It has chosen not to do so. 

Finally, to place the responsibility for our privacy law in Mr Justice Eady is simply wrong.  David Eady is a first instance judge.  He would not have sufficient seniority to forge such a law, and in fact many judges, from the House of Lords to the Court of Appeal, have passed judgments in relation to privacy law. 

In addition, the European Court of Human Rights in Strasbourg has set a high degree of privacy protection.  For the domestic judiciary to refuse to recognise this protection would leave the United Kingdom at odds with its treaty obligations and the country at risk of serial damages claims from the Strasbourg court as litigants take their cases there.  The difference being that the taxpayer would pick up the bill for compensating victims rather than newspapers and individuals.   Or better still, as is most common now, potential offenders are being restrained by court orders from infringing privacy rights in the first place.

So for these reasons, it is nonsense to suggest that there is no democratic mandate for our current privacy law.

Mark Thomson has suggested that a lack of other newsworthy stories in the parliamentary recess has led the mass media to look elsewhere for headlines.  But also, it is reasonable to infer that much of the one-sided and inaccurate criticism of the development of our law of privacy by tabloid newspapers has been self-serving. 

In any event it is worth remembering what we may be giving up if we move to a position where freedom of speech conquers all. 

Geraldine is head of Reputation Management at Olswang. She specialises in media litigation, libel and reputation management issues for media and other corporate clients and for Chairmen, Chief Executives and other leading individuals. She is one of the leading lawyers identified for defamation, privacy and contempt in The Legal 500 and a "star individual for Defamation/Reputation Management" in the Chambers Guide to the UK Legal Profession. Geraldine was a partner in a large City firm for eight years, then left to become a partner in Olswang in 1995.