“Hypocrite!” cry the lawyers and privacy claimants. Well they might. The outrageous claim by Paul Dacre, Editor of the Daily Mail, that Mr Justice Eady is condoning “depraved” practices by applying the law is rich, coming from him.

If anyone needs reminding, the cause of legal protection for personal privacy is not the “amoral” decision-making of a lone maverick judge, but, at least in part, the response of Parliament and the courts here and in Europe to the behaviour of newspaper editors such as Mr Dacre. Privacy law is the product of years of slow and careful change in response to sniggering, sleazy tabloid reports of the sex lives of celebrities. Privacy law may be an annoyance to newspaper editors, but it is far from amoral, being drawn from fundamental concepts of personal freedom and autonomy.

In 1990 the actor Gorden Kaye, of ’Allo ’Allo!, was filmed in his hospital bed. Nothing could be done to prevent it or to compensate him, the judges making it clear that there was no right to personal privacy in English law. Newspaper editors were entitled to publish the most offensive detail of the most private instances of people’s lives.

This was at odds with the protection given to commercial confidences. Companies have had very comprehensive protection for trade information for many years. That individuals did not have the same rights was because of an initially slow response to the behaviour of the modern press.

Brian Paddick, the openly gay former Metropolitan Police commander, brought one of the first privacy claims on the basis that The Mail on Sunday had door-stepped his former partner, and paid him £100,000 to reveal explicit details of their sex lives. The questioning of his partner was incredibly intrusive and prurient. Does Mr Dacre consider that morality required this information to be made public to millions? Well, the case was settled with The Mail on Sunday paying damages to Mr Paddick and accepting that the information should not have been published.

Then came Naomi Campbell’s case, Douglas v Hello! and a series of other cases in which judges including Mr Justice Eady, the Court of Appeal and the House of Lords decided that, in the light of the right to respect for private and family life and bearing in mind the importance of freedom of expression, an individual whose personal privacy is invaded has a right of action. That right was to be called “misuse of personal information”.

The privacy right derives from the existing common law and the European Convention on Human Rights, not from Mr Justice Eady’s imagination. Successive governments have shied away from legislating for privacy, preferring to leave the exercise to the courts, knowing full well what would happen. Perhaps our legislators trust judges, not newspaper editors, to defend fundamental rights.

Privacy is one of the areas where the law does more than impose damages. A judge is entitled to impose an injunction on a publisher seeking to publish private personal information or otherwise breach a duty of confidence.

In tandem with the developing privacy right is the underlying right to freedom of expression. No judge is permitted to ignore it. The Human Rights Act 1998 requires special attention to be paid to that right when considering an injunction or any relief that might affect freedom of expression. That clause is as a result of an amendment to the Human Rights Act introduced to accommodate the concerns of the press, led by Lord Wakeham, then chairman of the Press Complaints Commission.

In addition, newspapers can defend breaches of their duty of confidence by demonstrating that the publication was in the public interest. An analysis of the defence will be conducted with the principles of free expression firmly in mind. Far from “allowing the corrupt and the crooked to sleep easy in their beds” as Mr Dacre claims, exposure of wrongdoing will usually be protected by the law. For example, a politician who takes the moral high ground on crime but has cheated on his or her expenses cannot assume that his or her personal financial affairs will not be scrutinised and details published.

While the tension between privacy and freedom of expression resolved itself, newspapers enjoyed a brief period when the publication of lascivious details of the sex life of individuals could be defended on the basis that the individuals were “role models” and the publication in question “exposed hypocrisy”. That of course was the argument unsuccessfully employed in Max Mosley’s case.

Now, quite rightly, the tension between the principles has resolved into a balance, where the right to freedom of expression is valued and protected and a right to privacy is maintained.

This must be right. An individual, whether a role model or not, should not have his or her life destroyed by an invasion of privacy except where real wrongdoing is exposed or publication is otherwise firmly in the public interest. The arrogance and power of some newspaper editors is amply demonstrated not by Mr Justice Eady but by Mr Dacre and his publication. He has not advanced his cause with this outburst.

The author is head of the media and information law department at Bindmans LLP. She represented Brian Paddick in his privacy claim against Associated Newspapers

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