Mr Justice Eady said the following in his judgment in Max Mosley's privacy case against the News of the World (Mosley v News Group Newspapers Limited), when giving judgment in July this year, no doubt knowing what was likely to lie ahead in the way of criticism of judicial activism:
"It is not simply a matter of “unaccountable” judges running amok. Parliament enacted the [Human Rights Act 1998] which requires [the privacy values of the European Convention on Human Rights] to be acknowledged and enforced by the courts."
Some commentators, particularly some politicians and newspapers editors, have indeed expressed concerns about judicial activism. Earlier this month in a speech to the Society of Editors, Daily Mail editor Paul Dacre expressed the concern of some in the newspaper industry, describing Mr Justice Eady's decision as creating a new privacy law via the back door, without democratic accountability. In other words, he sees the court as creating new law in the sensitive area of press freedom which should be left to our elected representatives in Parliament. He gave a stinging criticism of the judge personally for judicial activism.
Is this unfair, and was Eady J correct to say that, so far as concerns the law, he was driven to this? Well in one way or another he was, whether (as he said) by virtue of the enactment of the 1998 Act, or by virtue of the ordinary common law principles of confidentiality as previously developed by the courts. The issue is really how far around the houses you need to go to get there. In privacy, the courts have taken the scenic route rather than the direct route, as explained below.
Is then the legal system wrong? Possibly, depending on what it is thought the judicial branch of government is there to do, and how much scope it is thought it should have to develop the common law (a common law of which Mr Dacre spoke approvingly incidentally). However, it is worth noting that the judgment, and the one in the earlier Campbell case (see below), brings UK jurisprudence on privacy into line with that of most other civilised countries.
Who would guess that what lawyers call horizontality could be so exciting? Horizontality is not about whether one should adopt the missionary position, but whether the rights set out in the Convention and its subsequent protocols are enforceable not just against public authorities (what is called "verticality"), but also directly between individuals or other private bodies without any further legislative intervention by Parliament being necessary ("horizontality").
The facts of the Mosley case, concerning an article in the News of the World involving his private life, have been well publicised and I will not recite them here. Amongst other things, the newspaper alleged that there was a Nazi theme to the event in question, which Mr Mosley strongly denied, and which Eady J concluded in his judgment was unfounded - this might therefore have grounded an action in defamation, but the proceedings in question were separate ones for breach of confidentiality and privacy. Eady J held that there was an unacceptable and unlawful invasion of Mr Mosley's privacy, contrary to Article 8 of the European Convention on Human Rights, which was not justified in applying the public interest test by virtue of him being President of the FIA.
The 1998 Act incorporates most of the Convention into UK law (it applies throughout the United Kingdom). Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence." In privacy and defamation matters, this needs to be balanced with Article 10, which gives a right to freedom of expression, which applies to the press as to anyone else and under which a public interest test is to be applied.
Section 6(1) of the 1998 Act provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". It is fairly clear what this means for, say, the local council deciding whether to grant planning permission or to take a young child into care. It is also reasonably clear what this obliges public authorities to do when acting under statutory powers: under section 3(1), so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. Where it is not possible to do so, the court can make a declaration of incompatibility for Parliament to pick up and deal with.
But by virtue of section 6(3)(a), "public authority" includes a court or tribunal. What does this oblige the court to do, and in particular does it oblige the court to provide new rights to sue where one individual infringes the Convention rights of another individual in a matter not otherwise regulated by statute? When the Bill for the 1998 Act was being passed, the Government stated that it did not have that effect. It is to be noted in particular that Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act and therefore is not a matter binding the court under section 6(1). That remains with Parliament, to the extent to which it is not captured by the Articles which are applied by the Act.
The Campbell case
Some legal commentators on the Mosley litigation have said that the chicken flew the coup in Campbell v Mirror Group Newspapers Limited  UKHL 22. This involved an article about Naomi Campbell in the Mirror newspaper. The privacy case arising from the article was heard, and won by Ms Campbell, in the High Court, appealed successfully by the newspaper to the Court of Appeal and then successfully further appealed by Ms Campbell in the House of Lords. It was a split decision in the Lords (3-2) on the issues whether the public interest test for publication was satisfied and whether the information had the necessary quality of confidence, but their Lordships were more or less agreed on the law to be applied to the case. In fact it is apparent from the judgment that the chicken flew the coup when the Human Rights Act 1998 was enacted, and indeed even before then.
The most widely accepted view of the current state of the law on the Convention, as applied by section 6(1) of the 1998 Act, is probably best summarised in the judgment of Baroness Hale in the Campbell case at paragraph 132, where she said:
"The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights."
Given that at common law there is indeed a pre-existing cause of action for breach of confidentiality, held to apply when "the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential", then as if by magic and a little circularity, Article 8 privacy law had landed.
Others of their Lordships reached the same conclusion on the law albeit by slightly varying routes.
Lord Hoffman (one of the two dissenting judges in the Lords) at paragraph 49 began with the earlier traditional understanding that:
"Even now that the equivalent of article 8 has been enacted as part of English law [by the 1998 Act], it is not directly concerned with the protection of privacy against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a guarantee of privacy only against public authorities. Although the Convention, as an international instrument, may impose upon the United Kingdom an obligation to take some steps (whether by statute or otherwise) to protect rights of privacy against invasion by private individuals, it does not follow that such an obligation would have any counterpart in domestic law."
However he took the view that there "has been a shift in the centre of gravity of the action for breach of confidence" at common law, which has assimilated similar principles, and that there was now no justification for applying different principles between an individual and a public authority on one hand under the 1998 Act, and between two individuals on the other hand at common law.
Similarly, for Lord Nichol (the other dissenting judge) at paragraph 18, by virtue of the ability of common law confidentiality to move at its own pace and to incorporate Convention privacy principles quite apart from the 1998 Act:
"... it is not necessary to pursue the controversial question whether the European Convention itself has [a] wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedure. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities."
Where we are
The truth is that the common law position on confidentially and privacy had been developing long before the 1998 Act was enacted, from its origins in an action for breach of trust where information is supplied by one person to another on the understanding of confidentiality, to a duty of confidentiality (and indeed privacy) where it is a just and reasonable expectation between those concerned that a duty of confidentiality should arise. Given that in the 1998 Act Parliament had seen fit to apply the privacy principles under the Convention as between a private person and a public authority, there seemed no reason (in the courts' view) why the common law regarding confidentiality should not have similar effect as between individuals.
Such development of the common law by reference to Convention principles has been true of other areas, such as defamation and the "responsible journalism" branch of qualified privilege (Reynolds v Times Newspapers Limited  2 AC 127), which has been informed but not driven by Article 10 of the Convention. In fact, the Reynolds case shows that the application of Convention rights is not a one-way street against press freedom, as it extended the range of defences available to the press in an action for defamation.
The other point to note is that even if one were to take the view, as some do, that the law relating to the freedom of the press is too sensitive to be one to be developed by judicial initiative, the UK is still a party to the Convention. What would change would be the venue - the proceedings would be against the UK in the European Court of Human Rights for failing to provide an adequate remedy for Convention rights under Article 13. Were Parliament to fill the gap by providing that remedy, for as long as the UK remains a signatory to the Convention it is difficult to see that they could or would do anything other than in effect apply Articles 8 and 10 of the Convention horizontally, as at present done by the courts by judicial initiative. And why not decide it at home rather than in Strasbourg anyway?
Lord Nichol's judgement is the one which most explicitly leaves open the possibility of deciding that section 6 has a wider substantive effect in mandating the horizontality of Convention rights than has up to now been established in Campbell and discussed by Baroness Hale. But given that it is no longer a live issue in privacy cases because of the development of the common law, that will have to await some new area of litigious activity. Much hangs on the significance (if any) to be placed on the fact that the 1998 Act does not apply Article 13 of the Convention - so for whom is that Article going to be unlucky?
Watch this space.
The contents of this commentary have some analogy with the balance between the natural and prerogative powers of the Crown on the one hand, and those conferred on the Crown by statute on the other hand. The government has been consulting on proposals for the further regulation of the prerogative by Parliament and has promised a Bill, presumably to be introduced in the 08/09 session (ie very shortly). I will comment on that, and on the Crown's natural powers and their background, including "Everyman's Guide on How to Declare War", when we see it. Other topics I hope to cover (d.v.) are devolution; contingent and contingency fees and "loser pays" in civil litigation (otherwise known as the personal injury circus); and distributive intellectual property licences (sometimes called "copyleft licences") which I think will make a big impact in the next decade, together with a general commentary on the politico-legal issues du jour as they arise.