Privacy and Injunctions - Evidence - Parliament

Dr Andrew Scott—Written evidence
At the interim stage, the question should be left in the hands of the journalist or
editor. As Mr Justice Eady has noted often, 396 when determining whether to make an
interim order judges act on the basis of untested evidence. Evidence is generally
presented in written form only, discovery and inspection of documents has not taken
place, and parties are not cross-examined. In principle, therefore, it does not make
sense to speak of a 'balancing of rights' at the interim stage because the content or
relative weight of those 'rights' cannot be properly assessed in advance of a full trial.
There can be no intense scrutiny on the specific facts of the case. The facts are
underdetermined. The rights are simulacrum only at the interim stage.
In those circumstances, there are significant dangers that judges may err in favour of
claimants whose contentions will prima facie tend to be the more poignant. It must
be relatively easy for a judge to empathise with the human predicament presented by
a claimant facing the prospect of an invasion of privacy, whereas the contribution that
a publication will make to public knowledge on matters of import may be more
difficult to gauge. It is perfectly acceptable, indeed preferable, to rely on the
journalist's and/or editor's appreciation of the public interest in a given story, and to
accept any credible contention from the prospective publisher. Where the public
interest is even putatively at issue, it may be best to err in favour of publication. This
would avoid any suggestion of the 'judicial licensing' of journalists' stories.
Under this approach, it cannot be avoided that the claimant may ultimately be left
only with compensation in damages for privacy harm caused. As the European Court
confirmed in Mosley v United Kingdom, this is in principle a wholly acceptable outcome
notwithstanding the superficially appealing mantra that 'privacy once lost is gone
forever'.
The position is different at final trial. At that stage, the court is able to determine the
relative weight of the respective rights and interests. It is therefore in a position
properly to exercise its function as the arbiter of fundamental rights. Theeditor's or
journalist's, while of evidential value, should no longer be determinative.
c. Should Parliament enact a statutory privacy law?
There is no advantage to be gained in Parliament enacting a new law that might affect
the balancing of rights in the substantive law. Where an Act may be of profound
utility is in redesigning the scheme by which privacy claims are determined at the
interim stage. As noted above in [2], such a law might amend s 12 of the Human
Rights Act 1998; introduce a prior notification obligation backed by a system of fines
to be imposed where warranted in the public interest; provide for penalties to be
imposed upon a publisher who deliberately misled the court at the interim stage, and
to provide for a workable account of profits remedy for claimants.
d. Should Parliament prescribe the definition of ‘public interest’ in statute, or should
it be left to the courts?
There would be no advantage to be gained by Parliament prescribing a definition of
the public interest. Indeed, any such move would be likely to constrain the courts in
an area where flexibility has proven valuable over time.
396 In X and Y v Persons Unknown [2006] EWHC 2783 (QB), for example, Eady J noted that ‘the court… cannot generally
avoid coming to a conclusion on the merits’ and its decision will ‘inevitably [be] at [the interim] stage to a greater or lesser
extent inchoate’ (at [44]). See also, Douglas v Hello! Ltd [2000] EWCA Civ 353, at [10], per Brooke LJ: ‘evidence on these
matters must be approached with care, prepared as it was on each side with great speed and not tested in crossexamination’.
1057