The full implications of this new methodology present themselves most acutely when the court is asked to grant an order preventing publication. That is a remedy of greater significance in the context of protecting personal or private information than used to be the case in defamation.
The publication of a defamatory allegation of (say) corruption or child abuse can to an extent ultimately be compensated for by a public judgment and/or an award of financial compensation, which is capable of restoring or vindicating the claimant’s good name. The wrong of infringing personal privacy, however, is very different in nature. Once privacy is violated, it is not possible to go back to the beginning. Hurt feelings may to some extent be assuaged by financial compensation, but the wrong itself cannot be undone.
The point is illustrated by a notorious case which happened in England a few years ago, and was again canvassed two weeks ago before an inquiry currently investigating media standards in the United Kingdom. It involved Mr Max Mosley, the former head of Formula One motor racing. The now defunct News of the World, a Sunday tabloid newspaper, decided to carry out secret surveillance in a flat where he was having a party with a number of women and indulging in various “sado-masochistic” activities. This was achieved by paying one of the women concerned £20,000 to conceal a camera in her clothing and to film what was going on. The newspaper then published the resulting video material on its website. It was thus too late for an injunction, since it had been viewed by many hundreds of thousands of people. It was all, as we say, “in the public domain”: Mosley v News Group Newspapers Ltd  EWHC 687 (QB). But it was a classic case of an intrusion which simply could not be undone. As Mr Mosley explained to the public inquiry on 24 November, it will now be the case that wherever he goes, thanks to the newspaper’s activities, people will always recognise and remember him as the man at the party. No amount of compensation could ever restore the status quo or undo the intrusion.
That is why the availability of an injunction is so important in the area of personal privacy. No other remedy could possibly be effective. On the other hand, any court order restricting freedom of expression is bound to be taken seriously. For over 200 years, not only in the United States but also in England, most people are deeply suspicious of any order of that kind. Censorship by judges, or by any other state official, is quite contrary to our tradition. As long ago as 1765, the great jurist William Blackstone put it this way:
“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.”
In due course, there emerged some carefully regulated exceptions. But when an injunction was granted in a defamation case, which was very rare indeed, at least it could be said that the judge had to be satisfied that the proposed publication would be unlawful. He would have to be convinced that the allegation would not only be defamatory but that it would also be untrue. If the defendant said that he intended, at trial, to prove the truth of his allegations, then the judge would have no choice but to refuse the injunction.
In privacy, however, the position is quite different. If a claimant comes to a judge and establishes that there is a likelihood that someone is about to publish a story about his private life (perhaps about a sexual relationship or about his health or financial affairs), the judge will readily grant an injunction over a short period of time, at least until the person concerned can have the opportunity to present his side of the case and argue that the injunction should be lifted. That does not often happen, because it is now widely recognised, by journalists at least, that intrusive stories about the sex lives of celebrities cannot be justified. Whether they like it or not, they now have to accept that in Strasbourg the Article 10 right to publish “tittle tattle” about celebrities will be accorded a very low priority. That is how it was put, only six months ago, in the case of Mosley v United Kingdom (App No 48009/08), 10 May 2011.
Therefore, the only way to resist such an injunction, or to have it discharged once granted, will usually be to argue that the intrusion can be justified by the public interest. That might be put in various ways. Let us take, for example, the leading case of Naomi Campbell v MGN Ltd  UKHL 22,  2 AC 457, concerning a well known model with a drug problem. It was argued that her previous public denials of a drug problem should be exposed – as she had chosen to mislead the public. But what distinguishes privacy injunctions from those in libel cases is that the judge, when granting one, is not doing so because he has determined that the publication would actually be unlawful. By reason of section 12(3) of the Human Rights Act a less onerous test is prescribed. He can grant an order where he has come to a conclusion that, if the matter goes to trial, the claimant is “likely” to persuade a judge that his claim should succeed. In other words, he needs to show that a judge, after hearing all the evidence, is likely to hold that his Article 8 rights should prevail over the rights of others to freedom of expression.
It can, therefore, readily be appreciated that there are significant disadvantages attending our “new methodology”. But for anyone seeking to adopt or develop a legal framework for determining issues about free speech, versus personal privacy or reputation, there are only essentially two models from which to choose. At the moment we are trying to run both in harness. On the one side is our “new methodology”, weighing the balance of competing rights afresh for each dispute that arises, and evaluating their relevant importance and worth according to the particular facts. On the other side, there is our more traditional approach of setting out fairly detailed rules (which can, of course, be defined in a statute or, in a common law jurisdiction, by gradual judicial development).
It is fair to say that, even when you do try to set everything out in detailed rules, you cannot possibly hope for them to provide an instantaneous answer for all disputes that arise. There will always be a degree of unpredictability – however much detail you attempt to include in your drafting. So often, if a matter is sufficiently uncertain as to require the court to resolve the disagreement, there will be no substitute for weighing up the competing values and deciding which should have priority in the light of the particular (probably unique) circumstances.
I think it may be helpful to offer an example of how we have been applying our “intense focus” on some unique facts, and to consider whether a better result could be achieved by the detailed formulation of rules in advance. But first I will set out some of the few general guidelines that seem to have emerged.
First, no case can be decided simply on the basis of generalities or rule of thumb (as many journalists would like). Unlike the Americans, for example, we do not recognise that citizens should be divided up with one level of privacy for (say) “public figures” or “celebrities” and greater protection afforded to everyone else.
Secondly, it has become accepted, where personal privacy is concerned, that even quite trivial details may attract legal protection – including, for example, matters of daily routine or domestic layout.
Thirdly, the mere fact that a person has given interviews, or otherwise revealed some aspects of personal life to the public, does not mean that he or she can thereafter be regarded as an “open goal” for intrusive coverage on everything else. As was said in one case, “If information is my private property, it is for me to decide how much of it should be published”: McKennitt v Ash  EWCA Civ 1714,  QB 73.
Fourthly, as I have said, it will not normally be relevant to prove that the private information happens to be true. Nevertheless, the court may have to investigate the facts in order to determine whether there is a genuine public interest in the proposed revelations. For example, in the case of Max Mosley, the supposed public interest justification for the intrusion was the allegation that he and the ladies were pretending to be Nazi prison guards and/or mocking the victims of the Holocaust. The court, however, found that to be untrue. The excuse for publication thus fell by the wayside: Mosley v News Group Newspapers Ltd  EWHC 1777 (QB).
I think the following example will illustrate how unrealistic it would be to expect any detailed set of rules about public interest, whether statutory or otherwise, to provide ready made answers for every combination of circumstances which comes along. It derives from a case about the chief executive of a large international corporation: Lord Browne of Madingley v Associated Newspapers Ltd  EWCA Civ 295,  QB 103.
The claimant sought an injunction restraining the newspaper from publishing information concerning his personal life and business activities – all apparently deriving from a former same sex partner (referred to as JC). The information could be sub-divided into a number of categories, each of which required to be weighed and considered individually. Some consisted of personal intimacies or nuggets derived from conversations in a domestic environment – including from private dinner parties attended by well known and influential people. There was in respect of these a reasonable expectation of privacy, which was to be protected so far as possible. An injunction was therefore granted.
Other material, however, fell into a category which it was argued was not private at all or, if it was, the subject-matter was of legitimate public interest. There were allegations, for example, the truth of which was never adjudicated upon, to the effect that company resources and personnel had been used to support JC in a small private business of his own. It was also said that he had access to company documents and confidential information. The court did not restrain these allegations. The publication could be justified on the basis that the claimant’s fellow directors and shareholders were entitled to know about those matters and investigate for themselves whether they were true or false. Moreover, in a case where the claimant’s real objective is to prevent harm to his reputation, rather than intrusion into truly private areas of his life, the court would be inclined to apply the traditional hard and fast rule of defamation law – namely, that the defamatory allegations should not be injuncted if the defendant wished to have the opportunity of proving them to be true.
This is one of a number of cases which illustrate how the “intense focus” needs to be applied to the particular facts and, by the same token, why such conflicts could not effectively be determined by the application of general rules. Nothing could quite cater for the multiplicity of unpredictable scenarios which tend to crop up in the cases we have had to decide. Our experience so far, therefore, rather suggests that if there is to be an effective law protecting personal privacy, and in particular personal information, there can be no substitute for the “balancing exercise” – notwithstanding the fact that it leaves so much to the personal appraisal by the judge of the individual facts.
Sir David Eady is a Justice of the High Court. This is the second part of a talk given as part of the Great Britain China Centre project, “EU-China promoting legal protection for the media” at a Seminar on Personality Rights Legislation, delivered in Beijing on 12 December 2011. The first part was posted on 17 December 2011.