March 11, 2010
Eady J addresses new Centre
Senior libel judge contemplates
Yesterday evening Sir David Eady addressed the launch of the new Centre for Law, Justice and Journalism at City University on significant changes that could occur to libel law as a consequence of recent trends in Strasbourg jurisprudence.
In a speech entitled ‘Protecting free speech in the context of the European Convention of Human Rights’, the senior High Court judge dealt with the origins and history of freedom of speech and went on to discuss the protection afforded it in the modern context, especially in respect to the possible impact of Convention rights upon the law of defamation.
He referred to the ‘new legal landscape’ in which traditional legal certainties could become blurred, such as the possibility that the truth of a statement may no longer be a complete defence to an action.
He examined how the need to balance competing Convention rights must be taken into account in dealing with defamation matters.
“In privacy cases, the mischief at which the law is now directed is the intrusion into intimate matters, so as to undermine the individual’s autonomy and dignity." It was now accepted that it was no defence merely to say that the intimate revelations were true, because "the vice is not inaccuracy but intrusion".
The question then became why a different test should be applied to reputation cases from that laid down by Parliament for those concerning protection of privacy, given that both were encompassed within the Article 8 right.
The Judge reasoned that it had to be recognised that the philosophy behind the Rehabilitation of Offenders Act, founded on proportionality, could be extended to other "inconvenient facts": "We need to be aware of this possibility because it could raise its head fairly soon as a natural concomitant of the trend towards the need to balance competing rights on particular facts."
"This new balancing approach is a fundamental shift in the way we do things. I think that as yet we may not have fully realised quite how fundamental.
He discussed what he considered to be two different types of uncertainty: The first type was an inherent uncertainty which lay in the difficulty with the new methodology by which individual judges are required to carry out a balancing exercise between competing Convention rights.
The second type of uncertainty concerned areas of uncertainly in media law to which “we are entitled to have answers at the earliest opportunity”. He gave a number of examples including the status of the “rule in Bonnard v Perryman” and intrusions into privacy in public places.
He concluded “There is a real need at the moment for a careful and principled assessment of where the law now stands, as well as of the direction in which it should be taken under the influence of Strasbourg jurisprudence."