How to explain, how to understand?...

PRIVACY & FREEDOM OF EXPRESSION: A DELICATE BALANCE

“Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all
guards against improbity. It keeps the judge himself, while trying, under trial.”

Bentham cited in Home Office v Harman [1983] 1 AC 280 at 303, per Lord Diplock

I have said a bit about the importance of publicity, what we all know as freedom of expression, enshrined in article 10 of the European Convention on Human Rights. But an equally important principle is the individual’s right to privacy, not to have the state or the public poking their inquisitive noses into one’s family, home, and social activities. That is enshrined in article 8 of the Convention, the right to respect for private and family life.
9.
Since 2000, when the Convention became part of our law, the courts have often had to resolve tensions between different human rights. Perhaps the most interesting is that between freedom of expression, in particular the media’s rights, to put it shortly if inaccurately, and the right to respect for privacy. Ever topical and rarely out of the media spotlight given the so-called super-injunctions. There are well-known cases such as LNS v Persons Unknown – which I’m sure you’re all familiar with under its full new name: John Terry (previously referred to as LNS) v Persons Unknown [2010] EWHC 119 (QB).
10.
So let me put this matter in its context.
(2) Freedom of Expression
11. Freedom of expression, whether by individuals or by the media, and the ability to exercise it, is an essential feature of any open, liberal and democratic society. Lord Bingham described its importance in the following way,
“free communication of information, opinions and argument about the laws which a state should enact (and I should add, its courts develop and apply) and the policies its government at all levels should pursue is an essential condition of truly democratic government. These are the values which article 10 [of the European Convention on Human Rights exists to protect, and their importance gives it a central role in the Convention regime, protecting free speech in general and free political speech in particular.”3

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Not so. As the Court of Appeal put it in clear terms [(1991) FSR 62 at (66)], “in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy.”

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These are all important issues; and difficult ones which a committee which I’m chairing will be looking at over the coming weeks. But what do you think? Are such orders acceptable in certain cases? If so, in what circumstances and what safeguards might be required? Or do they smack of Kafka? I leave you to think about that and look forward to your questions – on this, or on any other topic whatever which you wish to raise.

ttp://www.judiciary.gov.uk/NR/rdonlyres/D034D005-2956-4E2A-903C-41B74287F9FF/0/morprivacyfreedomexpression28042010.pdf