Lionel Leonard Cohen – The Rt Hon Lord Cohen of Walmer in the County of Kent – was a distinguished British lawyer. In 1951, he was appointed a Lord of Appeal in Ordinary. Given the fact that he was a committed Jew, this was a remarkable achievement in its time. He chaired the Committee which produced the 1945 Cohen Report, whose recommendations were adopted and in due course enacted in the Companies Act 1948.

Nineteen thirty-three was a black year in the history of Europe and, in particular, in the history of the Jewish people. Under cover of the Aliens Act 1919, the British government was entitled to refuse entry into Great Britain of any alien lacking financial wherewithal. There was no right of asylum. In April 1933, the British Cabinet was nevertheless persuaded to relax that rule as a result of a pledge or guarantee to the effect that Jewish refugees from Nazism would be supported by British Jews ‘without ultimate charge to the State’. The pledge was signed by Otto Schiff, Neville Laski, Leonard Montefiori and, of course, Lionel Cohen, as he then was. As a result of that inspired act, by the end of 1938 some 30,000 Jews from Germany, who would otherwise have perished, were permitted to enter Britain. We remember Lionel Cohen for that. It would have been easier for him to focus on his developing law practice than to get involved in controversy and politics.

Lord Cohen died nearly 40 years ago and, thanks to the British Friends of The Hebrew University, this annual lecture is now in its 59^th year. Thanks are also due to Lord Cohen's grandson, Jonathan Cohen, for maintaining the family tradition and this annual lecture. I suspect Lord Cohen would have been bemused, if not shocked, by the title I have chosen, and the subject of this evening's lecture. In his day, there was no English law of privacy, and the issue and the cases I want to discuss this evening would scarcely have been regarded as justiciable in his day. Times change – sometimes.

Giving this lecture in 2011, the Lord Chief Justice of England and Wales, Lord Judge, spoke of the relationship between the judiciary and the media. He stressed how the independence of both is fundamental to the continued exercise and survival of liberties which we so often take for granted, such as free speech and, by extension, a free press.Footnote ¹

As Lord Judge said, the interaction between the judiciary and the media provides the context in which privacy and super-injunctions are engaged. But, despite the body of case law and academic commentary on privacy in England and elsewhere, privacy laws have been the source of considerable frustration in certain sections of the British media, leading to unjustified and inaccurate press criticism being levelled at the judiciary. The most common criticism is that the judges are on a frolic of their own, developing privacy laws without due regard for what the press says is the public's right to know absolutely everything. This is an overblown assertion; but, as a result, the crie de coeur ‘freedom of expression’ has often stolen the limelight in debates on the subject, sidelining or undermining privacy as a mere nuisance in a democratic and liberal society. It may have been this which prompted Lord Nicholls in Campbell v Mirror Group Newspapers to sayFootnote ² that:

I suspect we would all agree with that. One need only pick up a newspaper or magazine to comprehend the vast range of published material which exposes persons and their lives to public scrutiny. Of course, exposure of the self to others in varying degrees is an inevitable concomitant of life in a society which values free speech and a free press.Footnote ³ This is part of the price we pay for living in an organised society: we are exposed to observation in a variety of ways by other people, both voluntarily and also, and more worryingly, contrary to our wishes.Footnote ⁴

A striking illustration of this is the recent rapid development of social networking sites, such as Facebook and Twitter. These tools for expressing one's personality, often by placing personal information on the internet, also give rise to privacy concerns. In a case called AMP v Persons Unknown, a young woman had taken sexually explicit images of herself on her mobile phone for her boyfriend's eyes only. When her mobile phone was subsequently lost or stolen, these images duly arrived online and were linked to her Facebook account, for everyone to see.Footnote ⁵ I think we would all agree that the woman in that case was deserving of the legal protection which she then secured in the form of anonymity in the ensuing court proceedings, and an injunction which was technologically sophisticated and had the effect of preventing other internet users from viewing and downloading the images.

Notwithstanding such a case, recent debate in England regarding the legal protection of privacy has been dominated by the three principal controversies to which the title of this lecture alludes.

The first is sex. In the vast majority of privacy claims which have come before the English courts in the last few years, the claimant has sought to prevent the publication of details of his infidelities – I say his and not hers, because the claimant is almost invariably a male, and quite often a footballer.

We have had a recent spate of these cases, the best known concerning John Terry (of Chelsea and England)Footnote ⁶ and Ryan Giggs (of Manchester United and Wales)Footnote ⁷ and their attempts to keep their extra-marital affairs out of the press. Interestingly, in relation to these cases, the politicians, the media and the great British public appeared to be keen to brush aside legal protection for the privacy of these footballers and their families. Kiss-and-tell revelations about ‘celebrities’ – and I use that word loosely – were apparently ‘fair game’, and any intervention by the courts was criticised in the tabloids as tantamount to ‘gagging’ the press.Footnote ⁸

Public sentiment on privacy shifted visibly and significantly when details of the second controversy, the scandal, began to emerge. The scandal, of course, was the revelation that some journalists at The News of the World had been illegally hacking into individuals' voicemail messages in search of stories, and had been doing so on a large scale for some years. Among the victims of the phone-hacking were not only well-known actors and singers, but also grieving families, including the family of a murdered schoolgirl.

These infractions of privacy by parts of the media have prompted a public inquiry, chaired by a distinguished appeal court judge, Lord Justice Leveson, into whether the existing regulatory framework is fit for the purpose of preventing and remedying transgressions by the press in the realms of harassment, invasions of privacy and inaccurate reporting. I have been following the inquiry closely, not only because press ethics is a subject of real public interest, but also because of my role as Chairman of the Management and Standards Committee, which was set up by News Corp Inc., the ultimate owner of The News of the World, in the wake of the phone-hacking scandal.

The Inquiry, which is continuing, has shown how badly some representatives of the press have behaved, leaving victims stranded in a welter of public hatred or great distress. Whilst the Inquiry is principally concerned with questions regarding the manner and extent to which press standards should be regulated in future, it shows the tension between the need to uphold a free and independent press on the one hand, and respect for an individual's privacy on the other.

The third controversy is the super-injunction. This buzzword is frequently misunderstood. Legally speaking, it is an interlocutory injunction, by which revelation of the very existence of the order and the fact of the proceedings is prohibited by court order.

In the context of privacy claims, these types of injunction have been sought (but rarely granted) in order to prevent the publication of details of a private nature about the applicant, and to ensure that the existence of the order remains confidential. Growing disquiet that these injunctions were being granted too readily, and were jeopardising the fundamental principle that justice should be conducted in public, led to the formation of a Committee on Super-Injunctions under the Chairmanship of Lord Neuberger, the Master of the Rolls.

The report of that Committee was published in May 2011. From it we learnt that only two super-injunctions had been granted in the context of privacy claims since 2010. Press panic that these so-called ‘gagging orders’ constituted an unacceptable derogation from free speech and open justice was shown to be unfounded. As well as revealing the statistics, the report provided valuable guidance to judges in England and Wales on the practice and procedure regarding super-injunctions. This clarification of the proper approach to super-injunctions,Footnote ⁹ and also the use of anonymity orders in privacy claims to protect the identity of the parties, has ensured that the courts accede to applications for anonymisation and interim injunctive relief only in appropriate cases. These developments in English law may provide a useful model for other common law jurisdictions to follow when considering the relief which should be available to claimants in privacy cases.

These three controversies have played out over the last year or so and, although I dare say that some people have seen and heard enough of the privacy debate, I think now is a good opportunity to reflect on the protection of privacy in law.

In 1986, and with a remarkable display of prescience, Sir Basil Markesinis accurately summarised the issue:Footnote ¹⁰

I want to explore just some of these difficulties by considering a series of issues, designed to stimulate debate on what privacy is, whether we should protect it, how we should go about protecting it, and what remedies should be available to the victim.

My approach is normative, and proceeds on the premise that we ought to question what the law should be, and then see how far reality falls short of or exceeds those expectations. It is also occasionally comparative, notwithstanding that my experience as a lawyer is exclusively English. These issues are not geographically sensitive and a comparative approach is, I hope, interesting and instructive.

I want to focus, in particular, on the publication of private facts, including photographs, which is one of the four categories of privacy torts identified by William Prosser, the distinguished Harvard and Berkeley law professor, author of Prosser on Torts, and the draftsman of the tort section of the Second Restatement.Footnote ¹¹ For completeness, the other three torts identified by Prosser are physical intrusion, publicly placing a person in a false light, and appropriation of a name or likeness.

In cases concerned with the publication of private details, the gravamen of the individual's complaint is the publicity given to his private life; in contrast to defamation, he seeks not merely to prevent inaccurate portrayal, but to prevent depiction altogether.

This is an area of English law where the principles are well established, although this was not always so. I will say something about these principles now, because they form the basis of many of the cases I want to refer to.

English law has always offered piecemeal protection to many aspects of an individual's private life. We are all familiar with the expression ‘an Englishman's home is his castle’. It has its origins in Chief Justice Coke's remarks in 1604 in Semayne's Case Footnote ¹² that:

This recognition of the sanctity of personal space is reflected in the development of the torts of trespass and nuisance.Footnote ¹³

In 2003, however, the House of Lords in Wainwright v Home Office Footnote ¹⁴ rejected a claim by Mrs Wainwright and her son for damages for invasion of privacy after they had been humiliatingly strip-searched during a prison visit. It was held that, although privacy was a value underlying the common law action for breach of confidence, it was not in itself a principle of law, and there was no general tort of invasion of privacy.Footnote ¹⁵

But just a few pages in the law reports separate that decision from Campbell v Mirror Group Newspapers, which was the case about the supermodel, Naomi Campbell. She successfully argued that the publication in a British tabloid of her drug addiction and treatment was an infringement of her right to privacy. Whereas the Wainwrights' humiliation occurred in 1997, before the enactment of the Human Rights Act 1998, Ms Campbell's case was governed by the new legislation.

The Human Rights Act introduced into domestic English law a large part of the text of the European Convention on Human Rights – notably, Article 8, which guarantees the right to respect for private and family life, and Article 10, which protects the right to freedom of expression.

Taking account of these potentially competing interests, the court in Campbell agreed that the established law of confidence should be developed in order to provide protection for the values embodied in Article 8 – that is, so as to make it a civil wrong to disclose personal information about an individual who has a reasonable expectation of privacy in respect of that information. In his speech, Lord Nicholls explainedFootnote ¹⁶ this important legal development:

So private information is now afforded a measure of legal protection in England, a development stimulated largely by the adoption of the European Convention on Human Rights through the passing of the Human Rights Act. An interesting question is whether this is a welcome and/or necessary development.

Before addressing those points, I should say something about the nature of privacy. There is a tendency to talk about privacy in terms of rights. This is understandable given the way in which the relevant law has been framed in different jurisdictions. Thus, Warren and Brandeis, in their seminal nineteenth century article,Footnote ¹⁷ which is hailed as the foundation of American privacy law, defined privacy as the ‘right to be let alone’. In Israeli law privacy was originally conceived as a human right;Footnote ¹⁸ and in Article 8 of the European Convention on Human Rights, recognition is given to the right to respect for private life. In Australia, in his leading judgment in Australian Broadcasting Corporation v Lenah Game Meats Ltd, Chief Justice Gleeson in the High Court of Australia rightly observedFootnote ¹⁹ that:

Until we recognise privacy, and private information in particular, as something that should be protected by the courts, it is conceptually sounder to talk of privacy as a human value, rather than as a legal right, not least because there seems to be no historical consensus in philosophy, politics or law that it is a right.Footnote ²⁰

In his interesting dissenting judgment in Hosking v Runting, a New Zealand case, Mr Justice Anderson gave an excellent description of privacy. He said:Footnote ²¹

The answer to the question ‘should this human value be recognised and protected by law’ is, obviously, yes. Lord Hoffmann takes the same view. In Campbell, he saidFootnote ²² that:

However, as often happens, what appears to be an obviously right answer proves, on further examination, to mask a rather more complex and difficult issue. That may be the position here.

In what was entitled a ‘Requiem’ in effect for the tort of privacy and expressly ‘A Farewell to Warren and Brandeis's Privacy Tort’, Diane Zimmerman, an American lawyer, launched, in 1983, a powerful attack on the supposed virtues of protecting privacy by law. This was a frontal attack on the Warren and Brandeis article earlier referred to.Footnote ²³ I want to address two of her points.

First, Ms Zimmerman argued (and this was recognised by Sir William Blackstone long ago)Footnote ²⁴ that there is an inherent difficulty with treating truthful speech as wrong. Her thesis is that false speech can be regulated because it has no ‘constitutional’ value (that is, it is untrue). Truthful speech, on the other hand, can only be regulated by making assumptions as to which details of an individual's life society has a greater interest in protecting.Footnote ²⁵ Ms Zimmerman rejects the notion that such assumptions should ever be made.

Secondly, by tracing the influence of Christianity on Anglo-American law, Ms Zimmerman argues that the public exposure of the faults of an individual is a desirable mechanism for stimulating better behaviour in others. It is guilt-based and is a truly Christian concept. In Ms Zimmerman's view, the gossip columns and social chit-chat so often scorned by the courts play a constructive role in modern society. If one has nothing to hide, one has nothing to fear from a free press; or, as one English journalist crudely put it during the Leveson Inquiry, ‘privacy is for paedophiles’.

Aside from these moral arguments, social developments have also cast doubt on just how fundamental privacy now is as a human value. Mark Zuckerberg, the founder of Facebook, was recently reported to have said that privacy is no longer a social norm:Footnote ²⁶

Living as we do in an information-obsessed society, where people give out private opinions and reveal their private lives to others almost reflexively, why should the law recognise (let alone protect) a right to prevent the publication of private information? Is it really necessary to employ expensive judicial machinery every time a newspaper publishes a photograph or a story that causes the subject some discomfort? Surely this discomfort is the price we pay for a free press and a free market?

Of course, the discomfort suffered by certain English politicians who were exposed as having abused the Parliamentary expenses system is an inevitable and welcome concomitant of true investigative journalism. But the argument that individuals who have had details of their intimate relationships divulged in the tabloids in order to satisfy prurient curiosity should simply ‘grin and bear it’ is hardly an attractive one. It also suggests that our well-developed and respected legal systems are incapable of distinguishing between these two situations.

It would seem that Ms Zimmerman's views, which to be fair were penned in the 1980s, have been overtaken by the legal developments we have been examining. Many jurisdictions have moved from tort liability based on reprehensible conduct to the need to protect individual rights.Footnote ²⁷ As a result, Ms Zimmerman's utilitarian arguments against the legal protection of privacy should now carry little weight.

In Jameel v Wall Street Journal,Footnote ²⁸ Lady Hale spoke of ‘vapid tittle-tattle about the activities of footballers’ wives and girlfriends'. According to Ms Zimmerman, the public's ability to access such material would moderate the behaviour of the readers. I must say, I think this a forlorn hope. It would be more likely to have the opposite effect. It would tend to normalise what might be considered to be the vapid lives, for example, of some celebrities and would hold them up as exemplars of how life should be lived.

As for Facebook and similar social networking sites, there is no principled basis for refusing to recognise a right to privacy in respect of private information because some choose to put their personal details online. Why should the law ignore those who choose not to? Equally, I expect many Facebook account holders would object strongly to the suggestion that, by using Facebook, they have implicitly abandoned their privacy altogether. As a social networking expert told an English newspaper, for some young people, the online world feels more private than their bedroom, with potentially greater control over who has access to their personal ‘space’.Footnote ²⁹

These observations reinforce my affirmative response to the question whether privacy, and in particular information of a private nature, should be afforded legal protection. As Mr Justice Eady observed in a lecture last year on the development of English privacy law:Footnote ³⁰

What people are sensing is that, just as freedom of speech is extolled as being central to democracy, so too there should be a sphere of thought and action free from public interference which constitutes a central idea of liberalism. In a fascinating book on the destruction of privacy rights in America, Jeffrey Rosen warns against pathological truth-telling and suggestsFootnote ³¹ that:

The shift in emphasis from legal liabilities to the protection of fundamental human rights has highlighted this distinction and rightly identified private information as an aspect of human autonomy and dignity worthy of protection.Footnote ³²

The next task is to identify what information should be regarded as private. Tales from the bedroom, the confession box, the voting booth, the jury room are, or at least should be, paradigms for absolute privacy. But what about a photograph of a supermodel emerging from a group meeting for recovering drug addicts, or CCTV footage of the daughter of a famous musician engaging in sexual activity with her boyfriend in the doorway of a London nightclub?Footnote ³³ I want to highlight some of the difficulties in this area by looking at three aspects of the debate about the extent of privacy rights: the ‘where’, the ‘what’ and the ‘who’.

Starting with the ‘where’, Professor Prosser in 1960, in a well-known piece in the California Law Review, said:Footnote ³⁴

To an extent, I would agree with this statement. But what if a newspaper then publishes that photograph, and it happens to be of, for example, an individual receiving urgent medical attention at the roadside. Here, there is a danger of confusing access with accessibility. The point is well illustrated by the 2003 case of Peck v United Kingdom.Footnote ³⁵ At 11:30 pm on a Sunday night, Mr Peck, who was in no sense a ‘celebrity’, walked alone down his local high street with a kitchen knife in his hand. He stopped at a central junction and attempted to commit suicide by cutting his wrists. Unknown to him, he was filmed with the knife in his hand by CCTV operated by the local council. Still photographs and footage from the CCTV were released by the council for publication in newspapers and on television in the interests of demonstrating the effectiveness of the CCTV system to prevent dangerous incidents and crime. Mr Peck's face was inadequately masked in the reproduced footage, and he was clearly identifiable.

After exhausting domestic remedies, Mr Peck complained to the European Court of Human Rights, alleging that the disclosure of the CCTV footage was a disproportionate interference with his Article 8 rights. Upholding the complaint, the Court said:Footnote ³⁶

Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life.

So, the criterion of spatial isolation is too rigid a concept to be used to identify private information. As Chief Justice Gleeson noted in the Lenah Game Meats case,Footnote ³⁷ there is:

Equally, details of an activity are not susceptible to publication simply because the activity is not done in private. It is rather more nuanced than that. The quality and the character of the information in question must also be considered, and this leads to the ‘what’, because there are certain kinds of information about a person – relating to, for example, health, personal relationships or finances – that are (or should be) easy to identify as private. Hence, in Peck, the European Court of Human Rights saidFootnote ³⁸ that:

Yet, despite most people agreeing that details of intimate relations should be private, the same zest as the media bring to the reporting of political and public affairs is often brought to the discovery of private and salacious details regarding celebrities' bedroom antics.

This leads to the ‘who’ aspect and, in particular, whether the identity and status of an individual should affect the extent to which his or her private details are afforded legal protection. Professor Prosser advances three reasons why public figures have lost their right to privacy to an extent: first, by seeking publicity they have consented; secondly, because their affairs are already in the public domain; and, thirdly, because there is a legitimate public interest in the details of public figures.Footnote ³⁹

But I do not think it can sensibly be suggested that, just because some people may have foregone the right to live their lives screened from public scrutiny in some areas, it follows that they also have abandoned their right to privacy altogether. In Campbell, their Lordships acknowledged that, whilst the media and Ms Campbell had fed off each other for a number of years, this did not deprive Ms Campbell of the right to privacy in respect of those areas of her life which she had not chosen to make public.Footnote ⁴⁰ What their Lordships recognised was that where an individual had deliberately misled the public about certain aspects of her life, she could not be heard to complain later if the press sets the record straight.

As this trio of factors illustrates, one cannot specify in absolute terms what information is private and what information is not. Necessarily, the exercise is inherently fact sensitive. This is important because, having considered in broad terms the nature of private information, and why it is deserving of legal protection, one then has to consider how to go about protecting it, and how to reconcile this protection with freedom of expression.

In comparative law terms, differences in socio-political and constitutional history between states have led to differing approaches to this area of law. In the USA, the Warren and Brandeis article of 1890Footnote ⁴¹ led most states of the Union to recognise a right to recover in tort for the wrongful public exposure of private information. But despite this promising start, an American judge (Judge Biggs)Footnote ⁴² described the state of the law of privacy in 1956 as that of a ‘haystack in a hurricane’.Footnote ⁴³ And the recent publication in a tabloid newspaper of a photograph of Whitney Houston's body suggests that the 1890 American dream has failed spectacularly. In the USA, the primacy of freedom of speech under the First Amendment means that it is automatically accorded priority over privacy interests, so virtually all conflicts are resolved in favour of free speech. The situation is so one-sided that some writers have described privacy as a ‘phantom tort’, largely emptied of its content.Footnote ⁴⁴

By contrast, the French civil law system has long afforded significant protection to privacy, with the courts taking a consent-based approach, and asserting that it is for every individual to define the boundaries of his/her own private life and the circumstances in which his/her private information may be divulged publicly. As a result, the French press tends to report less on politicians' private lives, with little local coverage, for example, of Dominique Strauss-Khan's womanising lifestyle.

The Israeli and English systems operate somewhere between these two extremes. No doubt this is an oversimplification, but as I understand it, whilst Israeli law regards the right to privacy as fundamental and virtually constitutional in nature, and thus meriting vigorous protection, this right is balanced with freedom of expression. Similarly, the English courts have repeatedly stressed that neither freedom of expression nor privacy takes precedence; where the two values are in conflict, the court must undertake a careful and fact-intensive balancing exercise to determine which should prevail in the particular circumstances.

Whatever the applicable system of law, the difficulty is to select a test that will not, on the one hand, unduly hamper the freedom of the press, but that will, simultaneously, deter gross invasions of privacy.Footnote ⁴⁵ No doubt I can be accused of being UK-centric, but I think this is achieved by the balancing exercise undertaken by the English courts, with the judiciary well equipped to weigh the competing arguments for or against publication.

We have noted some jurisdictional differences in the importance accorded to free speech vis-à-vis privacy. There are also differences in the chosen form of legal protection or the cause of action. In England, the courts have adopted a casuistic methodology and expanded the breach of confidence doctrine to accommodate claims for the misuse of private information. The courts now ask whether a reasonable person would have an expectation of privacy in respect of the information in question. If the response is yes, the court then goes on to consider whether the privacy of the individual should yield to the right of freedom of expression.Footnote ⁴⁶

This form of liability has created a rift with other common law jurisdictions, such as America and New Zealand, where the courts have considered it more conducive to clear analysis to formulate a free-standing tort of privacy invasion. Different still is the Israeli model, where the privacy law enumerates 11 acts which, if committed without the informed consent of the injured party, constitute an infringement of his right to privacy. Other countries, notably Australia, sit on the fence. Privacy law there seems to be awaiting legislative intervention.

In the end, it should not matter greatly whether liability for the publication of private information derives from tort law, equitable principles of confidence or statute. No doubt purists would argue otherwise, particularly when it comes to remedies. But, broadly speaking, most civilised legal systems have arrived at the same place: is the information which has been or is about to be disclosed private; and, if so, should countervailing interests, in particular, freedom of expression, allow for its publication?

Importantly, the concept of public interest usually features somewhere in this analysis, whether as a defence to the publication of otherwise private material – as I understand it is in Israel by virtue of section 18(3) of the privacy lawFootnote ⁴⁷ – or as part and parcel of the balancing exercise between the competing rights of privacy and freedom of expression, as it is in England.

I say ‘importantly’ because, despite the clear message – certainly from the English courts and Strasbourg – that there is a difference between what is in the public interest and what is interesting to the public, the two are often conflated. It is interesting to see what the European Court of Human Rights had to say recently on this in Mosley v United Kingdom. This was a case concerning the exposure by a British newspaper of the former Formula One president's involvement in activities of a sado-masochistic nature with prostitutes. The Court said this:Footnote ⁴⁸

As you would expect, and as Mr Justice Callinan pointed out in the Lenah Game Meats case,Footnote ⁴⁹ the media tend to take a different view, believing that they (and not the courts) should be the final arbiters of what is private, public, tasteless and newsworthy. This view has tended to manifest itself in ad hominem attacks on experienced and perfectly excellent members of the English judiciary, who are an easy target.

If the press had genuine grounds for complaint that investigative journalism was being stifled, they would pick their fights in the court room, and make appropriate representations that priority should, on the particular occasion, be given to freedom of speech. However, and I quote from a lecture given recently by Mr Justice Eady, who has borne the brunt of these attacks:Footnote ⁵⁰

To say that the court has no role as an arbiter of taste, whilst entirely right, obscures the real question. This is not a debate about taste; it is about whether the substantive content of the offending or intended article is such as to outweigh an individual's privacy rights. Where the individuals involved are consenting adults, there is no question of exploiting the young or vulnerable,Footnote ⁵¹ and the situation does not give rise to favouritism or advancement through corruption,Footnote ⁵² then there is simply no public interest in the disclosure of the existence of a sexual relationship, still less salacious details or intimate photographs.

And yet, as a former editor of The Times wrote in 1995, all but two of the seventeen scalps that Fleet Street claimed to have cut from the heads of senior politicians at that time concerned sexual behaviour.Footnote ⁵³Plus ça change. Save for the expenses scandal I mentioned earlier – a recent instance of true investigative journalism – few politicians of late have been hounded from office for incompetence or wasting public money.Footnote ⁵⁴ This seeming inability of journalists to differentiate between matters which have no modicum of public interest, and those which contribute to debates of genuine public importance, serves only to underscore the difficulties associated with self-regulation, and the corresponding importance of the courts.

This is particularly so when it comes to the question of remedies. Here, the key question is whether disclosure has already taken place or not. If it has not, the main concern of the individual in question is to prevent publication, making injunctive relief the preferred remedy. After all, unlike reputation, which can be vindicated by an award of damages and a public apology, privacy in respect of the private information concerned is irretrievable once it is lost, and the embarrassment is only augmented by proceeding with court action.

Despite this, England (and I should probably add France to the list as well) appear to be unique in regarding injunctive relief as the primary remedy in privacy claims. By contrast, the American courts regard any prior restraint – in other words, any restraint on publication before it has happened – as anathema to free speech. As one American judge (Mr Justice Blackmun) put it:Footnote ⁵⁵

This attitude is also adopted by the English courts in libel cases, where the general rule is that an interlocutory injunction to restrain publication will not be granted if the defendant declares his intention to argue that the alleged libel is true. In privacy cases, the equivalent would probably be a clearly stated intention to defend the disclosure as being in the public interest. But, as I have said, applications for interim injunctions to restrain publication are rarely contested by the media on these grounds.

Under the Human Rights Act 1998, judges have to be satisfied, before granting any injunction to prohibit publication, that the applicant is likely to succeed at trial in proving that an unjustifiable infringement of his or her privacy is about to take place. This is not an easy threshold to meet. For example, in the case of John Terry,Footnote ⁵⁶ Mr Justice Tugendhat refused to grant an anonymity order and a super-injunction in relation to an extra-marital affair which Terry, a well-known English footballer, had with his teammate's girlfriend. The judge considered that Mr Terry's principal concern was the effect the revelation would have on his valuable sponsorship contracts, rather than his private life. He also found there was no threat of publication of particularly intrusive details or photographs, as opposed to the mere fact of the relationship.

Despite Mr Terry's failure to obtain injunctive relief, there does appear to have been an increase in applications for interim injunctions. A very recent example is Jonathan Spelman v Express Newspapers,Footnote ⁵⁷ where the 17-year old son of a UK cabinet minister sought an injunction to prevent the publication of information reportedly regarding his sporting career as a young England rugby player. He had allegedly taken steroids, a banned drug, to increase the speed of his recovery from an injury and thereby improve his prospects of selection. Although initially granted, the injunction was not continued at the return date, Mr Justice Tugendhat ruling that it was neither necessary nor proportionate to do so.

Notwithstanding that the injunction in that case lasted no longer than a week, the high legal fees reportedly incurred by both parties will no doubt raise further questions about the attempts to use such injunctions by wealthy footballers, politicians and bankers to protect their (mostly) sexual indiscretions.

The next question is whether injunctive relief is an effective form of protection in the light of modern technology. Last summer, there were two deplorable abuses of the legal immunity afforded to British parliamentarians under Article 9 of the Bill of Rights 1689 for statements made in that capacity. John Hemming, an MP in the House of Commons, and Lord Stoneham, a peer in the House of Lords, disclosed the names, respectively, of a footballer and an ex-banker in flagrant disregard of subsisting privacy injunctions. Predictably, the revelations went ‘viral’, and were soon conveyed across the internet by tweeters and bloggers.

Does this mean that privacy law is now unenforceable? Of course not. As Lord Judge said at a press conference on 20 May 2011:Footnote ⁵⁸

The courts are already showing signs of innovation in the face of the internet, ordering service of an injunction via Twitter, for example.Footnote ⁵⁹ Similarly, in the AMP case to which I referred earlier,Footnote ⁶⁰ expert evidence was adduced to assist the court in determining what orders to make so as to prevent search engines from turning up the explicit images sought to be protected by the claimant, and also to avoid the further transmission and storage of any parts of those images. There is clearly scope for technological and judicial innovation in this area to protect claimants from unwarranted internet privacy invasions, which are becoming an increasingly common form of wrongdoing. I am confident that interim injunctions are not at risk of being rendered impotent just yet.

Besides granting a privacy injunction, what else can the courts do to vindicate privacy rights? As I have mentioned, compensatory damages after the event of publication cannot restore an individual's privacy. What is more, awards in the English courts have been fairly modest, with most not exceeding £10,000. This seems to be in line with the statutory cap in the Israeli privacy law.Footnote ⁶¹ More substantial payments have been made in England in settlements reached in the wake of the phone-hacking scandal. It is, however, plain that damages for privacy infringement are not to be compared with damages for defamation.

German law allows exemplary damages for particularly persistent or flagrant invasions of privacy,Footnote ⁶² and restitutionary awards could be available where the defendant exploits commercially valuable attributes of the claimant in order to make a profit.Footnote ⁶³ The jurisdictional basis for these measures of damages would have to be carefully considered,Footnote ⁶⁴ and any such awards in England would also have to meet the tests of necessity and proportionality, which derive from the Strasbourg jurisprudence.

I am conscious of the fact that I have posed more questions than I have answered. What I have endeavoured to do is to stimulate debate on a precious right which, ironically, has recently had some bad press.

In truth, the battle between free speech and privacy – two values that form an essential part of any democracy – is centuries old; only the context in which it is being fought has changed. If we err too heavily in favour of protecting privacy, we risk destroying one of the most fundamental freedoms known in a civilised society. But if we accede to the media's cry that judicial intervention in aid of an amorphous ‘right to be let alone’ smacks of censorship, we risk giving birth to a culture of transparency where, among our moral custodians, would be those responsible for the phone-hacking scandal. Faced with this reality, I am confident that the balancing of these competing rights by experienced and independent judges is the best way of addressing the current controversies surrounding the protection of privacy.