A leading libel QC has warned that the courts are increasingly diverging from public policy on privacy as expressed by Parliament.

Antony White, QC, of Matrix Chambers, says that the courts — chiefly through Mr Justice Eady, the judge who gave the recent Max Mosley ruling — are increasingly diverging from the statutory privacy tests that Parliament has approved.

“It is very important,” he said this week, “that the law in this area should be developed by the courts in conformity with the public policy determined by Parliament and reflected in recent legislation dealing with misuse of personal information.”

If the courts develop the law that is inconsistent with public policy, the “democratic process is undermined and public confidence in the law eroded”, he said. “Yet that seems to be precisely what is happening.”

His comments came at the privacy forum and debate organised by The Times and Matrix Chambers on the theme: Is the new law of privacy strangling a free press — and if so, what can be done about it?

Mr Justice Eady, the QC said, held in the Mosley case that in the developing law of privacy there is no defence at present if the media defendant “reasonably believes that publication is in the public interest”; and only if the court rules that it actually was in the public interest.

That stance, White argued, was at odds with the Data Protection Act 1998. When a Bill to amend this Act was recently before the House of Lords, an amendment was passed that deals with the misuse of personal information.

That provides a defence in both civil and criminal cases for unauthorised publication of personal data where the media defendant reasonably believes it was acting in the public interest.

Such divergence between the courts and Parliament was regrettable, the QC said. “It is important that judge-made law does not depart from public policy clearly and recently expressed by Parliament.”

Jack Straw, the Justice Secretary, had recently indicated that a “statutory nudge” on the law on privacy might be required. This, White said, is where it should apply.

The forum also heard from Hugh Tomlinson, QC, again from Matrix, who argued for a different solution. He warned that doing nothing was not an option.

“The law of privacy is slowly having an impact on the staple fare of the British tabloid reader,” he said. “We are gradually moving from a position where anything could be published unless it was forbidden, to the opposite: nothing about an identifiable individual can be published unless it can be justified.”

Under the influence of human rights case law from Strasbourg, he warned, “we are moving slowly but inescapably towards the stricter privacy protection of French or Italian law.”

Paul Dacre, Editor of the Daily Mail, had described such an observation, in an earlier talk, as “chilling”, Tomlinson added. “Chilling or not, they are, I believe, accurate.”

And they were not out of line with the views of the majority of the public that approves such clear rules being imposed on the media in relation to the publication of private information.

At the public debate held later that day, Tomlinson proved right: the audience shifted somewhat towards the view that yes, the new law of privacy is strangling a free press (argued by Sir Simon Jenkins, journalist and broadcaster, Sir Ken Macdonald, QC, the former Director of Public Prosecutions, and David Yelland, partner at Brunswick Group LLP and a former Editor of The Sun).

But the majority view that it was not, prevailed — as argued by Matthew Parris, writer and broadcaster, Anne Atkins, novelist, writer and broadcaster, and Edwina Currie, former minister and MP, now author and broadcaster.

Left, therefore, to the majority view, nothing would be done at all. But Tomlinson argued that the prospect would then be bleak and lead to a stricter and stricter law.

If the UK was to remain a party to the European Convention on Human Rights, then the only alternative to abdicating responsibility for the development of a privacy law to the Strasbourg judges was for the press and Parliament to accept that privacy was a proper subject for legislation.

“A statutory regulator would have the legitimacy and the powers that the Press Complaints Commission lacks and would serve the interest of both public and media by providing quick and effective resolution of complaints.”

The public, he said, through its democratic institutions, needed to act to provide proper and effective protection for both privacy and freedom of expression.

“This is, I believe, the only principled way ahead for the new law of privacy.”

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