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Wednesday, 12 November 2008

Daily Mail editor lambasts Moseley judge, and Moseley responds

For once the IPKat finds himself in the rather strange position of agreeing with Max Moseley. Mr Moseley (who was exposed by the News of the World as enjoying the attentions of a number of German-speaking 'ladies of the night') has spoken out in the Guardian against Paul Dacre's comments regarding privacy. Mr Dacre, the editor of the Daily Mail, gave the opening speech at the Society of Editors' conference. The speech comments on the fallout after the News of the World lost a privacy action, brought by Mr Moseley this summer (reported by the IPKat here) after exposing Mr Moseley's night-time activities and posting a video of one of the events on its website. Mr Dacre accused the judge in that case, Mr Justice Eady, of introducing a privacy law by the backdoor. He began:

But there is one remaining threat to press freedom that I suspect may prove far more dangerous to our industry than all the issues I have just discussed.

'Put to one side the United Nations’ recent attack on Britain’s disgracefully repressive libel laws that have made London the libel capital of the world – something that should be a bitter source of shame for our judicial system.

Concentrate instead on how inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.'
Then, after discussing Moseley's case, and another case:

'Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”.

...

But what is most worrying about Justice Eady’s decisions is that he is ruling that - when it comes to morality - the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral”.

...

What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.

But most worrying is that when it comes to suppressing media freedom, the good Justice Eady is seemingly ubiquitous....

[Dacre then lists the cases in which Mr Justice Eady has sat]

But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.

English Common Law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression. I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.

If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one Judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen.

All this has huge implications for newspapers and, I would argue, for society. Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.

Put another way, if mass-circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice
.

The IPKat finds Dacre's speech problematic for a number reasons. To suggest that a judge has an agenda needs to be proven with more rigour than demonstrating that he has delivered a number of consistent judgments - if a judge is applying the law, one would hope for consistency. Who, out of interest, does Dacre suggest is granting Mr Justice Eady this 'virtual monopoly'? Mr Dacre also appears to have not quite grasped the concept of the separation of powers. Yes, judges are unelected, but that's the whole point. He calls the Human Rights Act 'wreteched'. That reduces the importance of an Act which enshrines (or at least adumbrates) fundamental values to a spat between editors of newspapers who want to break 'scandals' and those nasty conservative judges who are spoiling all the fun (and ruining the circulation figures). He accuses the law of being 'amoral', but surely the decision to put privacy and family life over free speech in some cases is a moral one, even if it's one he disagrees with. More fundamentally, judges applying the law, and perhaps particularly IP law, generally doesn't moralise (although there's clearly a moral judgment by Parliament in deciding what the law should be in the first place) or look to closely at the 'quality' of what they're protecting - a consequence of the fact that they're there to apply the law, not to make it up as they go along - make your mind up Mr Dacre; either you want judges to defer to the will of Parliament or you don't - you can't have it both ways. The full text of the speech is available here.

13 comments:

Anonymous said...

Does IPKat know how to swap the faces around in the two photos? I would like to see what Paul Dacre looks like in judge's robes. Not much different to Eady J, I suspect.

Is there a moral to this question? Probably not!

Anonymous said...

See also the letter from 4 leading libel QCs in yesterday's Times, also leaping to Eady J's defence.

http://www.timesonline.co.uk/tol/comment/letters/article5125951.ece

http://business.timesonline.co.uk/tol/business/law/article5126916.ece

Jeremy said...

I'd just like to put on record my own expression of solidarity with Mr Justice Eady.

Anonymous said...

Glad to read Ilanah's analysis.
Another sad example of a person arguing in the name of democracy but at the same time ignoring the fact that the judicial system is based on a democratic process and a cheap attack on the independence of a judge, when his decisions are disliked. Again, so it appears, it is difficult to nurture sound arguments on a money making attitude.

Anonymous said...

Most who read this blog would leap to the judge's defence, but wouldn't a lot of the sting in the argument be taken out if cases were decided by a number of different judges.

Anonymous said...

That's what appeals are for...

Anonymous said...

Depends on the nature of the appeal of course. By all means let Paul Dacre rail against "privacy laws" in general, but if a single judge has become synonymous with and sole arbiter of(albeit first instance) a class of case such as this, we have a potential difficulty.

The more the merrier I say, and give Eady J a nice sabbatical, taking patent software cases....

Anonymous said...

Erm, point of order. Were the German-speaking "ladies of the night" actually "ladies of the night" (I think that euphemism relates to other activities and didn't the successful appeal by MM rely to a degree on this difference?) and were they German-speaking (I've a feeling he ordered them in German)? Got to get the facts right! Wouldn't want to be accused of libel!

And I'm not sure he was enjoying what was being done. Isn't that the point of what he was doing or having done to him? Oh, never mind - it was all a little too... well, just too!

C.E. Petit said...

I think the real problem here isn't that Dacre wants judges to defer to Parliament; he wants judges to defer to him... and his commercial interests. We certainly have that problem on this side of the Pond, where any judge with whom a given commentator does not agree gets accused of "judicial activism" (which, to one who actually knows anything about the history of the common law, is an oxymoron).

Anonymous said...

Seems the DM just wanted to head of another privacy case:

http://www.telegraph.co.uk/sport/football/3445730/Chelsea-star-Ashley-Cole-sues-over-sex-claims.html

Ilanah said...

Penultimate anonymous - one of the ladies was German speaking. I have to confess to not being entirely clear about the precise boundaries as to when a lady is 'of the night'.

I wonder (though it's just a suspicion) whether all the cases end up in front of Eady J for some scheduling reason, or because he is senior in this area in some way.

Anonymous said...

"Cole married the then Cheryl Tweedy in July 2006, and sold the wedding pictures to a glossy magazine".
Might be more difficult to argue the "lack of public interest" bit when it was apparently enough of a public interest to warrant a payment of £x to find out about the wedding.
P.S. £200K is less than 3 weeks wages for AC and I bet most of us had longforgotten about it - until now...
Ouch, there's another hole in my foot!

Anonymous said...

The answers to Ilanah's last query are as follows:

1. it is simply incorrect that Eady J hears all privacy cases even at first instance. The Campbell case was heard at first instance by Morland J. The recent JK Rowling baby case was heard at first instance by Patten J.

2. Eady J is the senior libel and privacy judge so you would expect him to heard the high profile cases such as Mosley. There is only one other specialist in the QBD who is Tugendhat J and I understand he has been ill some of the time this year.

3. A disappointed litigant who wants to get the view of 3 different judges can appeal. In the Mosely case the NoW did not.

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