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Comment: Judge seems to like press freedom less than people who buy newspapers
Roy Greenslade24 Jul 2008
The News Of The World has reacted to losing the privacy action brought by Max Mosley by saying: "Our press is less free today". It believes that the privacy law that arrived in Britain via the European Convention on Human Rights inhibits freedom of the press.
Rightly, the paper says that Parliament, which has always avoided legislating on privacy, has never debated the issue. Instead judges, such as Mr Justice Eady in this case, are developing a law themselves through their rulings.
I can well understand the paper's reaction. But I am less certain that its press freedom worries are justified, despite my concern about the way in which our newspapers are more constrained than those in the United States.
At the time that the ECHR was incorporated into British law, I was one of several commentators who said that it would lead to judge-made law. However I concede that, in a sense, judges interpret all laws passed by Parliament, so there is no real difference in them doing so over privacy.
The problem, of course, is that it is impossible for journalists to discover important facts unless they are able to inquire into people's affairs.
That said, they must always have a proper justification, which editors have already agreed in a code of practice under the term "public interest". In short, that means the right to detect or expose crime, to protect public health and safety and to prevent the public from being misled by someone's action or statements. It would appear from Eady's ruling that he has applied that definition of public interest to this privacy action in much the way that he and other judges have done when dealing with libel cases. In effect, he is not outlawing intrusions into privacy. He is specifically saying that this particular story did not justify such an intrusion, despite the sordid nature of Mosley's activities. I cannot see that this judgment will have a chilling effect on legitimate undercover investigations seeking to expose matters of genuine public interest.
But it may well have an effect on the normal kiss-and-tell fare offered up by some red-tops: lawyers might well note that if sexual behaviour is the only reason for publishing a story, then it might be possible to sue for an invasion of privacy.
The danger is that although the Mosley judgment is understandable, given the weakness of the News Of The World's defence, it might be used as a building block towards other more contentious privacy actions. Though I think that unlikely, there can be little doubt that judges do not seem to like press freedom as much as the people who buy newspapers.
