In a lecture  given last night to the Eton College Law Society – in the “Election Hall” – the Master of the Rolls, Lord Neuberger dealt with the topic of “Privacy and Freedom of Expression: A Delicate Balance”.   The topic is one which is central to our concerns at Inforrm and this lecture is a very good opportunity to look at the approach of the most senior civil judge in England and Wales to this topic.

Lord Neuberger begins by pointing out the vital role of a free press in ensuring that “hidden truth is brought to light” and those in authority are held to account ([3]).   However, he immediately points out that there are many reasons why limits must be placed on the general principle of openness.   As he says

“the ultimate issue is not really about what the principles are or should be; it is how the balance between competing principles is to be struck, or, to put it another way, how the tension between two principles is to be resolved” [7]

He then goes on to discuss freedom of expression and the right to respect for privacy, quoting Blackstone’s description of the common law right to freedom of expression and drawing from him the “wider point” that freedom of expression at common law was never an unqualified right ([16].

In relation to “privacy”, Lord Neuberger reminds us that English law still does not have a right to privacy but rather that Article 8 has provided the impetus for the development of a number of discrete rights – including the tort of misuse of private information [10].  He explains the need to establish a “reasonable expectation of privacy” and, if that is established, the question of “whether disclosure can be justified” [20]   After pointing out that this is a difficult, fact sensitive, balancing exercise he says

“So, in a way, the ultimate policy decision on the balance between freedom of expression and respect for privacy appears to have been left in the hands of judges rather than Parliament. A better analysis in my view, is that, as often happens, Parliament has enacted the general policy, and has left the application of that policy to particular cases in the hands of the judiciary”.

In the final section of his lecture, Lord Neuberger briefly considers the John Terry case, concluding that there are difficult issues which his committee on injunctions will have to consider.

The lecture is a useful, brief introduction to the issues: with the Master of the Rolls carefully avoiding positions on issues of controversy.

And finally, on the subject of the Master of the Rolls we thought our readers might be interested in this short, and we thought interesting, video clip in which Lord Neuberger explains how he became a lawyer (from iCould stories on You Tube):