Justice Eady is not the source of all privacy rulings, says expert

Daily Mail editor Paul Dacre this weekend singled out Mr Justice Eady as the man who has effectively created a privacy law, but one expert has said that it is "unfair and wrong" to claim that the emerging law is all his work.

"Justice Eady is following the rulings made in the Court of Appeal and the House of Lords," said Rosemary Jay, a privacy law expert at Pinsent Masons, the law firm behind OUT-LAW.COM. "He is not making the law, he is applying it in accordance with rulings from higher courts. Now there is some latitude on the facts of a case and he may be interpreting the facts in a way that is sympathetic to those seeking privacy, but that is quite different to saying he is single-handedly making a law of privacy."

Speaking to the Society of Editors at the weekend Dacre, a highly respected figure in the press world and one who rarely makes public appearances, said that a privacy law was being created not in Parliament by elected politicians but in the courts system by the "arrogant and amoral judgments … of one man".

"I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places," said Dacre. "This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man."

Jay, though, said that to characterise the rulings as all coming from Mr Justice Eady is not correct.

"Justice Eady is a High Court judge, and people can appeal beyond the High Court if they think that he has made a wrong decision," she said. "In at least one of those cases listed by Mr Dacre there was a subsequent appeal and the Court of Appeal agreed with Mr Justice Eady.  It is therefore unfair and wrong to say that Eady is somehow applying an idiosyncratic approach and failing to reflect the approach taken by more senior courts."

Jay also said that Mr Justice Eady is applying a law created elsewhere and in the context of rulings coming from courts higher than his, the High Court.

"Justice Eady doesn't sit in the Court of Human Rights in Strasbourg. The UK has to apply those cases," she said. "To say that he is 'creating' a law of privacy is a nonsense; the law has been created in the higher courts and in Strasbourg."

Traditionally there has been no law of privacy in the UK. The Human Rights Act, though, translated the principles of the European Convention on Human Rights into law. One of those principles was the right to respect for a person's private and family life.

It is that clause of the Human Rights Act which has been used to ban the publication of a number of stories about high profile figures.

The most recent example was the case of Formula One racing boss Max Mosley, who hired prostitutes to participate in an orgy. A story and video published by the News of the World was ruled to be an invasion of Mosley's privacy, given that the paper failed to back up its claim that the orgy was Nazi themed.

"Eady effectively ruled that it’s perfectly acceptable for the multi-millionaire head of a multi-billion sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him," said Dacre.

"In the Mosley case, the judge is ruling that there is no public interest in revealing a public figure’s involvement in acts of depravity. What the judge loftily calls the 'new rights-based jurisprudence' of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards," he said.

Jay said that Dacre's moral case did put judges in a difficult position, but that deciding one way or the other was not creating a law of privacy but applying it.

"What kinds of behaviour do we regard as sufficiently 'bad' to mean that newspapers are justified in publishing them in the face of real objections by individuals to the impact on their private life?" said Jay. "The courts have said, in Naomi Campbell's case, that they will not protect lying, but what about sexual behaviour that is not actually criminal? That is the problem Eady faced in the Mosley case. He had to make a hard decision and in the case decided that the balance was in favour of privacy."

Dacre argued that if politicians wanted a privacy law they should debate the issue in Parliament and create a specific law after arguing the issue in public.

The Government has looked before at creating a privacy law but have never followed through with proposals. In the late 1980s and early 1990s there was political pressure for such a law and judges chose not to create a privacy law through their reading of existing laws.

The Conservative Government chose not to create one, though, and strengthened the powers of the Press Complaints Commission instead.

Jay said that when Government failed to ask Parliament to legislate on the issue it was inevitable that the judiciary would step back in.

"So when the Human Rights Act was passed the courts stepped in, saying they didn't have a choice, they couldn't not enforce the law. There was a vacuum, and the courts filled it," she said. "But when enforcing the law the courts have to have regard to the European rulings and the High Court has to have regard to the House of Lords and Court of Appeal. 

Jay said that even if Parliament created such a law, the end result would probably not be greatly different from the current situation.

"Even if you thought it is better to have a political solution where Parliament passes a law, it would have to accommodate Article 8 of the Convention on Human Rights, so might not be that different to what we have now," she said. "So even if you had legislation, the room for manoeuvre could be relatively small and hard decisions would still have to be made."