December 3, 2009
Eady J gives keynote speech
Senior libel Judge tackles press criticism over privacy and libel tourism
The current debate over privacy rights and libel tourism has been ill-served by personal attacks on judges and exaggeration in the press, Mr Justice Eady told the audience at Tuesday’s JUSTICE-Thomson Reuters ‘Free Speech v Privacy‘ conference.
"I see no evidence of a storm – let alone one of which I am at the centre," said the judge. The reality was that, now that the law was relatively well settled, there had been very few contested privacy claims in recent years, and he had seen none in the previous year. The rarity of contested claims was largely because there were few stories where there was any hope of a public interest defence succeeding.
He suggested that the problem was that in carrying out a balancing exercise between freedom of speech and privacy judges had to consider questions "so straightforward that it would be quite difficult to get them wrong". With little opportunity for appeal the press turned to personal attacks on judges. But this approach “does absolutely nothing to further the debate. What would be more constructive would be for those who do not like the way things have gone to challenge the balancing role given to judges by Parliament”. Abolishing the law of privacy was not an option, given the
Interestingly, Mr Justice Eady queried whether the ECtHR’s Princess Caroline decision should be carried to its full extent in domestic privacy law, since a possible view was that the Protection from Harassment Act 1997 goes far enough to protect paparazzi targets in public places: “It may be excessive to render unlawful (say) snapshots of a fully clothed actress strolling down the road for a new tube of sun lotion”.
The judge went on to address the conference, at which 5RB’s Godwin Busuttil also spoke, upon the issue of ‘libel tourism’ which he said had recently attracted “a huge amount of publicity…in the press and a large juggernaut of a campaign in progress”, based on the premise that the large number of claims brought by foreigners in the English courts had become a pressing problem which required urgent attention. But Mr Justice Eady explained that this was not a phenomenon which the judges came across in their daily lives. In a powerfully-reasoned list of ten practical points, he challenged many of the arguments raised by campaigners for statutory reform of defamation law. He pointed out that the ability to strike out a claim as an abuse of process where a claim does not relate to a ‘real or substantial tort’ already exists.
He also pointed to long-standing cultural differences for the divergence between American and English libel law: “The first amendment of course gives a particular degree of sanctification of freedom of speech, whereas our law (and that of many other jurisdictions) has a differing ordering of priorities, It seeks to give a significant degree of counterbalancing weight to the important concepts of truth and reputation.” Further, he cast doubt on the suggestion that the solution to libel tourism was the reversal of the burden of proof to a situation where libel claimants would need to establish the falsity of defamatory allegations. In his view, such reform was not only questionable in principle but would also be unlikely to produce any real effect upon libel litigation.