The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“. This is a rare example of an interview with a serving judge. It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”. Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.
The interview covers a range of familiar topics caught by the sub-headings in the article: “Privacy law by the back door?”, “”Mosley, privacy, the public interest — how things might have been different” “The frenzy of superinjunctions”.
Mr Justice Eady points out that “It’s clear from Strasbourg jurisprudence that anything sexual — anything concerned with personal relationships — attracts protection under Article 8,” going on to say that this is “normally the subject matter we’re concerned with“. because this is what the press is normally interested in. However, the important question is the balancing of Articles 8 and 10. He says that this is “not a precise art and you can’t legislate for a precise outcome.”
In relation to his own involvement in developing privacy law, Mr Justice Eady says, “It so happened that I was judge in charge of the list for several years and the practice was in those days that I never did anything else but the Queen’s Bench list.” He goes on to observe
“There’s an increasing tendency towards specialisation among the judiciary and the ‘customers’ like to get in front of a specialist judge if they can. That tends to be the fashion of the day.”
He accepts that ill-informed media comment is something that goes with the territory.
“I think it’s inevitable because the press are interested in the press’s own affairs. So privacy and libel get much more coverage than personal injury, commercial cases or even public law, all of which are just as important if not more important. There are lots of judgments that have been criticised where it’s quite apparent that people haven’t read them. But there’s nothing you can do about that: the press office aren’t going to give them a spoonful of sugar to make it easier. And if they want to criticise the judgment, they will – whatever it says. But I don’t really bother to read that stuff.”
The “controversial” part of the interview concerns “extremism”. Joshua Rozenberg notes that sex and health are clearly areas that the law will protect in the absence of any over-riding public interest in disclosure. So are personal financial affairs. But he asks, what about other areas that an individual in a responsible position may wish to keep private, such as extreme political or religious views? Would the law prevent such views from being made public by a spouse? Mr Justice Eady’s unsurprising reply is
“That’s quite a difficult question to answer There may be no evidence that the individual’s private views had ever affected the holder’s public position. On the other hand, you might say that it’s difficult to envisage how somebody who holds those views can be rational.”
There is a discussion about what would happen in the case of a strict Muslim who might not let his wife appear in public unless she wears a full veil – but, presumably, wishes to keep this domestic discussion private. In relation to this somewhat implausible hypothetical situation (bearing in mind the wearing of the veil in public might be thought to be a “public act”), Mr Justice Eady offers the cautious reply.
“Does that necessarily mean that the person shouldn’t be allowed to be a judge, or a teacher or whatever it might be? To what extent has he allowed those views to intrude on his decisions or conduct? It all depends on the circumstances.”
He goes on to say that, at some point, someone’s views may become so irrational that his judgment cannot be trusted on anything. “I’d have considerable doubts about a flat-earther being a teacher, or a judge or a doctor.”
The interview also contains some interesting reflections on the relationship between libel and privacy. Mr Justice Eady comments
“There is a close comparison between privacy and libel. They interlink because they’re both part of the human personality — or, as they tend to call it in Strasbourg, human integrity. So one can see why Article 8 would have them both under its umbrella — although originally, of course, it didn’t. It’s a very recent development that libel has been brought in under Article 8 – not in the convention, obviously, but in case law.”
He goes on to point out that
“Since Strasbourg now regards both privacy and libel as coming under the Article 8 umbrella, the question arises: is it any longer feasible, or sensible, or justifiable, in principle for having separate tests for interlocutory injunctions, depending on whether it’s privacy or libel?”
A final point is worth noting folloing the “May privacy madness”. Mr Justice Eady comments that it is “surprising how many injunctions do hold and how many are settled on private terms, fairly quickly.” He points out that this includes cases where the press are defendants — “because they recognise, on mature reflection, that there’s no public interest argument and they’re happy to get out of it”.
As we have mentioned, the interview was picked up in the “Sunday Times” in an article (entitled “Top judge admits injunctions may protect extremists” (behind paywall). This headline bears no rational connection to the content of the article.
The same journalistic standards are maintained by the sub-heading. It tells us that “Mr Justice Eady has defended the use of injunctions to protect the rich and famous” – although the interview contains no reference to the “rich and famous”, much less a defence of their use of injunctions.
The article goes on to highlight Mr Justice Eady’s “admission” of the “possibility” that the law could protect those with “extreme political or religious views”. We have already set out the relevant remarks and it is difficult to understand how it could sensibly be said that they are “likely to reopen the debate about the growth of judge-made privacy law”. They illustrate, rather, the basic point that “it all depends on the circumstances”.
It is a sad, though perhaps predictable, reflection on the level of media “privacy” discussion that this distorted and partial account by the “Sunday Times” is the only place where the interview is reported in the press (there is a short informative comment on the Meeja Law Blog). Ill-informed media comment does, indeed, “go with the territory”.
Nevertheless it seems to us important that interviews of this kind are given by Judges, from time to time. It will be read by those who are engaged in more serious reflection on these issues and will, we think, assist in guiding the “privacy debate” in a more considered and thoughtful direction.