At a time when newspaper editors have warned of its ‘chilling effect’ on freedom of expression, two top QCs have voiced concerns over privacy law.

Hugh Tomlinson QC said the privacy regime currently being rolled out by unelected judges suffers from a “democratic deficit.”

Speaking at a privacy forum in London, he said the British media were gradually moving from a position where anything could be published unless it was forbidden, to the opposite – where nothing about an identifiable individual may be published unless it can be justified.

He said the shift, under burgeoning privacy law, was already affecting the content published by tabloid newspapers.

Mr Tomlinson outlined a number of options for the future development of the law. Privacy could be put a statutory footing via legislation following public and Parliamentary debate, or it could be policed by a new statutory press regulator. Alternatively, we could simply do nothing and tolerate the present situation, with law being made by unelected judges influenced by decisions of the European Court of Human Rights.

In his view, using our democratic institutions to decide laws protecting both privacy and freedom of expression was “the only principled way ahead.”

Meanwhile, Ken Macdonald QC has aired powerful arguments in favour of robust press freedom. Writing in The Times, he said: “The freer the flow of information, the freer the society receiving it.”

Mr Macdonald highlighted Britain’s centuries-old “tradition of scurrilous, even scabrous, journalism” which on important occasions represented a “critical strand of popular control over the governing process.”

Deference to privacy and authority in other European countries had harmed the vitality of their media and the transparency of their politics. Although media intrusion and derision was sometimes “very unkind,” it was also part of what makes our society vivid and should not be seen as a problem to be cured by privacy laws, he said.

He added: “Britain is a better place today than it was at a time when the common people were not to be told that their king was sleeping with a divorcée.”

The QC’s views have provided food for thought at a time when the House of Commons’ Culture, Media and Sport Select Committee on press standards has recently heard from editors that privacy law is hampering investigative journalism.

Pop stars take legal action against paparazzi

Amid the rise of privacy law, courts appear increasingly willing to help celebrities keep the media at bay.

Singer Amy Winehouse is reported to have obtained a High Court injunction banning photographers from pursuing her and from taking pictures of her outside her home or in other public places if they have pursued her. The injunction is said to be made under the Protection from Harassment Act 1997.

Fellow pop star Lily Allen also recently secured an anti-harassment injunction against photographers pursuing her.

Jury secrecy

The confidentiality of a jury’s deliberations has been strictly enforced following controversial disclosures in The Times newspaper.

A jury foreman and the publisher of The Times were convicted of contempt over an article which revealed how jurors in a manslaughter trial had approached the evidence before reaching a guilty verdict.

The foreman had genuine concerns about the correctness of the verdict, but in disclosing and publishing his well-intentioned revelations, both he and the newspaper were held to have contravened Section 8 of the Contempt of Court Act 1981, which makes it a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by jurors in the course of their deliberations.

Freedom of expression under Article 10 of the European Convention on Human Rights, and any public interest in publishing the foreman’s serious concerns, did not justify breaching Section 8, according to Lord Justice Pill and Mr Justice Sweeney.

The Times is set to appeal, but in the meantime another tranche of important information has been ruled strictly off-limits for the media.

Secret inquests

All told, it is clear that press freedom is being pegged back on a variety of fronts.

The media will welcome Justice Secretary Jack Straw’s announcement last week that plans to introduce secret, non-jury inquests via the Coroners and Justice Bill have been dropped.

Nevertheless, Mr Straw is now proposing that deaths may be investigated in inquiries, which may be heard in private without public scrutiny in certain circumstances, under the Inquiries Act 2005.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact Nigel telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.