Privacy law has already changed the face of British journalism, according to the judge who has played the most significant role in its development.
Mr Justice Eady believes there are signs that media practices have altered in response to the legal restrictions on intrusion into private life as a result of recent English case law and decisions of the European Court of Human Rights.
In a speech given earlier this year to a group of lawyers which has only recently hit the media radar after being submitted in evidence to the House of Commons Culture Media and Sport committee, he drew attention to a leading media commentator’s remark that a Sunday tabloid seemed to be “cleaning up its act” and “moving away from sleazy stories originating in the bedroom”.
Perhaps depressingly for the media, the judge added that in many privacy cases there was little hope of mounting a successful ‘public interest’ defence.
He said: “From the coal face, it does seem that there are now very few privacy cases being contested.
“Often when there is the notification and the threat of an injunction, the journalists and in-house lawyers will give an undertaking, because they are able to spot very quickly what is, and what is not, within bounds.
“The rarity of contested claims is largely because there are so few stories where there is any hope of a public interest defence.”
He added: “One person’s life story cannot be uninhibitedly told if it encroaches, to an unacceptable degree, on another person’s reasonable expectation of privacy. This clearly has implications for kiss and tell stories.”
Coming from the judge that handles the majority of privacy cases at first instance, this is clear and unashamed confirmation of the ‘chilling effect’ privacy law has already had on freedom of expression since the landmark cases of Princess Caroline of Monaco and supermodel Naomi Campbell in 2004.
A freelance journalist has secured a helpful court ruling about challenging reporting restrictions in employment tribunals, albeit that she ultimately lost her appeal on a separate issue.
When a claim involving alleged sexual misconduct was settled out of court after a reporting restriction order (RRO) had been imposed, reporter Fiona Davidson persuaded the tribunal to lift the restriction.
The point was appealed to the Employment Appeal Tribunal, which ruled that under the procedural rules that govern all such cases (i.e. the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004) the journalist had actually had no right to be heard before the employment tribunal.
However, Ms Davidson herself then appealed and won on the question whether reporters are entitled to make representations to employment tribunals about RROs.
The appeal court said it was “common sense” that the employment tribunal allowed Ms Davidson to make representations to lift the restriction.
The senior judge added: “It would, we cannot help adding, assist greatly if the matter were put beyond argument by the introduction of an express provision…in the 2004 Rules, enabling a person such as the appellant to apply to the Employment Judge or tribunal to have a right to make representations about the variation or revocation of a restricted reported order.
“A party who seeks to keep a full RRO in force, and thus to restrict the freedom of the press to publish reports of the proceedings fully and contemporaneously, can hardly complain if a journalist, who is able to demonstrate a legitimate interest in whether or not the order is varied or revoked, seeks to make representations.”
This was a Scottish case but the same 2004 Rules apply in England and Wales, and the appellate guidance is a useful addition to all reporters’ armoury.
Science writer Simon Singh is continuing with his determined defence of a libel claim brought by the British Chiropractic Association.
In a piece published in the Guardian last year on chiropractic’s approach to ailments such as children’s ear infections, colic and asthma, Singh questioned the evidence-base of claims allegedly made by the BCA.
Mr Justice Eady held that the relevant parts of the article were assertions of fact, not opinion which could be defended on the basis of Fair Comment. The Court of Appeal then refused Singh’s written application for permission to appeal.
Undeterred, he is now set to renew his application, with an oral application to the appeal court, due to heard in October this year.
The case has provoked strong reaction from commentators concerned about freedom of expression on scientific issues.
To contact Nigel telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.
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