Privacy and Injunctions - Evidence - Parliament

The Rt Hon. the Lord Neuberger of Abbotsbury and Mr Justice Tugendhat—Oral evidence
(QQ 486–535)
on which the journalist had written articles he was considering whether or not to publish
had absolutely no value, but he recovered huge damages because of the privacy element.
Q503 The Lord Bishop of Chester: As to the 30 mph speed limit, I am sure we all
agree there is not a fundamentalist certainty in advance of all judgments of courts, but, given
there are several different codes or definitions of public interest, would it not be desirable
to have at least one statement—guidance—on what the public interest might be?
Lord Neuberger of Abbotsbury: I wish anyone luck in trying to produce a definition
of public interest that is comprehensive and will work in every case. The danger is that, if
you try to define something as hard to define as the public interest, first, you will run into
the difficulty that Mr Justice Tugendhat has mentioned: that as time moves on the perception
of what it is moves on, and I suspect that in the fast-moving world in which we live your
definition will become out of date, or at least insufficient, fairly quickly. Second, I also suspect
that, if you define it by having definite parameters, inevitably it will not work in many cases. If
you define it as having certain parameters but not exclusive ingredients, saying “take into
account among other things”, it will not be very much more than what judges do anyway. In
other words, if you define it by saying that when considering the public interest you can take
into account only the following factors—a 30 mph speed limit-type definition—I suspect it
will become out of date and prove unsatisfactory, because a judge will say, “I have to take
into account this factor because Parliament tells me to, even though I think it is completely
irrelevant in this case”; or you make it vague, in which case you might as well stay with what
you have got. That is my suspicion, but if Parliament enacts a provision defining public
interest, the judges will have to apply it.
Q504 Chairman: It has been suggested to us that some people are bringing actions
under privacy which might be more appropriately brought as defamation proceedings, and
that in some cases they are unwilling even to say whether or not the statement about which
they are complaining is true. Is that something you have experienced, and is it a problem?
Mr Justice Tugendhat: Until the late 1990s defamation actions tended to be about
sex, money and local government. The ones that used to be brought about sex, which were
characteristically either adultery or homosexuality, are no longer brought in libel but in
privacy. There is a lot to be done to work out the relationship between the applicable
causes of action. When I say “the applicable causes of action”, the situation we are in now—
for those of you who are not lawyers, excuse me—is that it is not uncommon to see a claim
brought on the same facts with at least four, if not five, causes of action: for example, in an
allegation of sexual harassment brought against a publisher who is a public authority, such as
a local authority employer, you would have pleaded libel; privacy; Data Protection Act;
direct action under section 6 of the Human Rights Act; quite possibly, malicious falsehood as
well; and maybe breaches of employment law. Without going into the other ones, nowadays
a claimant very commonly has a choice of, and does advance, libel or privacy together with
data protection. How we resolve these is a difficult question. The courts are attempting to
bring them together, but it is not easy to do.
Q505 Lord Black of Brentwood: To go back to the precision of the law, perhaps
we may talk briefly about the application of section 12. We heard evidence from Jack Straw
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