With the naming of Ryan Giggs under parliamentary privilege yesterday, the dam has finally burst and English privacy legislation is now fully revealed as the contradictory and costly shambles that it is. Giggs’ name was chanted from the terraces during Saturday’s game against Blackpool, for goodness’ sake, and Twitter had long since “gone Spartacus”, with everyone and his grandmother tweeting his name…

And still… And still Mr Justice Tugendhat has not lifted the injunction! His reasoning is that if this were a “government secret” now outed, well, that would essentially be that, the fait would be jolly well accompli. But a person’s private life is different, he says, because it is about intrusion; in other words, the injunction stays to stop the press camping out on Giggs’ doorstep or harassing Imogen Thomas, the footballer’s alleged lover.

A laudable sentiment, one might have thought, but one that does not detract one iota from the surreal and blood-soaked circus that results when the law, the internet and Her Majesty’s press go full steam ahead in opposite directions.

The European Court today denied Max Mosley’s application to force British newspapers to notify people before printing stories about their private lives. Mosley has always argued that winning damages from newspapers was, and is, not enough in cases such as his, because – whether true or not – once the story is out it cannot be un-published, and will stay in the public’s mind (or perhaps their nightmares) for ever. Mosley felt that he, and others like him, should have been given a chance to apply for a pre-publication injunction from the courts.

The European Court did not agree, but argued that a pre-notification system would have “a chilling effect” on press freedom, and that there are significant doubts as to how effective such a system would be. “The court is of the view that article 8 [right to privacy] does not require a legally binding pre-notification requirement. Accordingly, the court concludes that there has been no violation of article 8 of the convention by the absence of such a requirement in domestic law”.

It should be pointed out, though, that in 99 cases out of a hundred newspapers do contact people before publication anyway; it is the exceptional cases that Mosley was concerned about. The Court’s ruling marks the end of Mosley’s campaign to have the law changed in this respect. This, taken together with the fact that the hitherto anonymous celebrities who have taken out super-injunctions are being exposed on Twitter, leaves the debate around privacy legislation more in a state of flux than it’s ever been. More to come.

Thinks…

David Cameron, the Prime Minister, has expressed an opinion on super-injunctions, libel and privacy… This while strolling through a car factory in Luton. Specifically, he says that he feels “uneasy” about judges making decisions in court on issues of privacy that ought really to be decided by our elected representatives in Parliament.

Veterans among you will know that I don’t agree with this view, even though I have strongly opposed several of Mr Justice Eady’s decisions, crucially in McKennitt v. Ash. The reason I don’t agree is that Parliament has already decided on privacy issues by voting to make the European Convention on Human Rights part of British law. Once that happened, it was up to judges in court to make decisions applying ECHR in a British context, bearing in mind case law, common law, and all the rest of it.

The problem, as I’ve always seen it, is that Mr Justice Eady – specifically – got the balance completely wrong between the ECHR’s Article 8 (privacy) and Article 10 (freedom of expression) in McKennitt v. Ash, as well as several other cases, most glaringly perhaps in Mosley.

[For further rants about this, see McKennitt v. Ash archives on the right]

An important ruling from the European Court of Human Rights signals the end of so-called CFA’s in English libel and privacy cases, and with that a step forward for freedom of speech.

CFA stands for “conditional fee arrangements”, or “no win, no fee”. As in the landmark Naomi Campbell case, it means that newspapers or other defendants have to pay out vast “success fees” to claimants’ lawyers, which in turn has meant that there has been a reluctance to go to court and defend perfectly defensible cases.

The ECHR ruled that “success fees were inappropriate because they had not been designed for wealthy claimants but to widen access to justice for those who cannot afford to go to court”.

Ian Burrell wrote a big profile of M J Eady in yesterday’s Independent, promising to delve into “the mind of Britain’s most controversial judge”. However, the piece doesn’t really bring us anything new. Here is the para on McKennitt v Ash:

The media was also alarmed by an Eady judgment in 2005 which blocked an author, Niema Ash, from revealing secret details about the Canadian folk singer Loreena McKennitt, her close friend. The judge said McKennitt was entitled to a duty of confidence under Article 8 of the Human Rights Act (the right to privacy), which – in Eady’s view – outweighed Ash’s right to freedom of expression under Article 10 of the same legislation. The judge’s finding was upheld by the Court of Appeal, which praised his “careful (and correct) judgment”.

Mr Justice Eady is to be replaced as senior libel and privacy judge in the High Court from 30 September 2010; his successor is Mr Justice Tugendhat, who in the past has shown himself to have – at least in many commentators’ view – a more “nuanced view” of the ECHR and its application in English law.

Among the links in James Robinson’s piece in Media Guardian is the PressGazette report on the Appeal Court ruling in McKennitt v. Ash, from darkest December 2006. It was a day that will live in infamy.

Stephen Glover, media commentator in the Independent, writes today about Mr Justice Eady’s latest injunction on privacy grounds, this time to do with the golfer Colin Montgomerie. Bizarrely, no one seems to know whether this is a so-called super-injunction, or simply a common-or-garden injunction: “Mr Justice Eady has […] moved the goalposts” Glover writes. “And yet it is not clear exactly where they have been moved to”.

In a memorable phrase, Glover also reminds us about Eady’s judgement in the 2008 Max Mosley case, in which the judge decided Mosley had not been involved in a “Nazi orgy”, just a common-or-garden one, despite the fact that:

“Some of the participants donned uniforms for the occasion. Blood was shed, humiliations inflicted, and German spoken in a sado-masochistic free-for-all.”

Which is, I suppose, Glover’s way of saying “You could have fooled me”…

Postscript: In today’s Daily Telegraph there is an interview with Lord McNally, a Lib-Dem minister in the Ministry of Justice, who says there is a need for Parliament to devise a privacy law in order to remove the courts’ ability to develop case law in this area: “There was a danger that we were getting towards having privacy law by judicial decision,” McNally says. “If we are going to have a privacy law it should be openly debated and freely decided by Parliament.”

As I’ve said before, I’m not so sure a privacy law is the solution, and I see nothing wrong in principle with this aspect of the law developed as case law by the courts. The real problem, it seems to me, is that the courts – and Mr Justice Eady in particular – have created a serious imbalance between Article 8 and Article 10 of the ECHR, much too much in favour of the former, i.e. in favour of privacy protection at the expense of press freedom.

(This is of course where the McKennitt v. Ash judgement became pivotal, in the sense that it “allowed for” the subsequent judgements to happen, including Mosley, in all its absurdities).

Postscript 2… And then there was another super-injunction, this time by an England footballer…

Mr Justice Eady gave a speech at City University in London last Wednesday – the text of the speech is here – in which he, rather surprisingly, acknowledges that the introduction of the ECHR into English law has “undoubtedly [had] an inhibiting effect on the exercise of our freedom of expression”.

Press commentator Steven Glover in the Independent today (scroll down) compares Eady’s comments to Richard Dawkins suddenly contemplating the existence of God.

In relation to McKennitt v. Ash, Eady says (on p. 9) that the obligation on the English courts to apply “Strasbourg jurisprudence” in privacy cases like that, i.e. where no previous domestic rules existed, represented “a fresh breeze blowing from the continent”. I have to say, it didn’t feel particularly fresh at the time.

Mr Justice Eady, the presiding judge not only in McKennitt v. Ash but in every other important privacy case since, has spoken out against the wide-spread criticism of his decisions, and of him personally (The Guardian’s report is here). In particular, it seems Eady felt strongly about Daily Mail editor Paul Dacre’s comments (on the judge’s “moral and social nihilism”) following the Max Mosley case.

Alongside the paper version of the Guardian’s piece (not online) is a short summary of McKennitt v. Ash:

In 2005, Mr Justice Eady granted an injunction to the Canadian folk singer Loreena McKennitt to prevent publication of parts of a book called ‘Travels with Loreena McKennitt: My Life as a Friend’. Eady ruled that the “private” information disclosed in the book, written by McKennitt’s former friends Niema Ash, included a description of McKennit’s home, its decor, layout and state of cleanliness. The case has become an important part of the law on privacy, widening the scope of what is considered private and raising the bar for people seeking to justify publishing private information.

En annoterad version av Carter-Rucks “super-injunction” i Trafiguraaffären finns nu att studera här (pdf). The G:s chefredaktör Alan Rusbridger skriver om det hela här.