Legal Opinion: Privacy on parade in Fleet Street and the law courts

Our shy and retiring privacy law is rarely out of the media spotlight. The media lawyer Amber Melville-Brown suggests why we should be grateful that it exists

What is our nation coming to, when Fleet Street is censored for publishing clandestinely obtained, intimate details and images of sexual activities, carried out on private property between consenting adults?

The privacy action brought by the Formula One boss Max Mosley, over the publication of details, images and footage of his S&M sessions with five dominatrices, has had tongues wagging. But, according to Mr Justice Eady – the judge who heard the case and who has been criticised openly as the media-unfriendly foe of Fleet Street – this was not a "landmark case".

Perhaps as a judicial retort to the anticipated criticism his ruling would provoke, his judgment confirmed: "The law is concerned to prevent the violation of a citizen's autonomy, dignity and self-esteem. It is not simply a matter of 'unaccountable' judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts."

The 1998 statute is the Human Rights Act. And the values are those in the European Convention of Human Rights; article 8 guarantees the right for respect for private and family life and article 10 the right to freedom of expression. These hostile sibling rivals have been fighting for supremacy since birth.

Not surprisingly, the media champions article 10, a valuable weapon in fulfilling its vital role as the eyes and ears of the public. The nascent privacy law on the other hand is a problem child, tweaking the ear and pulling the tail of the "watchdog and bloodhound of society" – as the media has been referred to by the courts – stopping it from going about its duty of publishing material in the public interest, let alone its desire to publish information of interest to the public.

So what are the rules of engagement for these warring rights? Once the claimant's article 8 right rears its ugly head, article 10 has its shot at trying to knock it down. In the Mosley case, the publisher lost the battle because its "public interest" weapon misfired. There was no Nazi element to the role play, according to the judge, just costumes and German dirty talk. But what about the exposure of a criminal offence – committing actual bodily harm? No; the odd whack with a whip did not justify the intrusive publications, even if the video footage showed just how his wounds got there.

The judgment has been roundly criticised by the Fourth Estate as an unjust curtailment of free speech, itself a hallmark of our democratic society. Perhaps they are right. While there was no "public interest" in the exposure, the story certainly engaged the interest of the public. The court defined the former fairly narrowly, to include the exposure of criminality and hypocrisy, for example. But there is hot debate over whether it should be given greater scope to ally more closely with the latter. After all, without an interested public newspaper sales would fall off, publishing houses would go out of business and free speech and democracy might be at risk.

But editors of national newspapers, owners of publishing houses and anyone who considers Mr Mosley's conduct distasteful and unworthy of protection, should remember that they are men and women too. They might recall the last time they were engaged in sexual activity and then picture an unguarded moment splashed across the front pages. Let's be honest, it's rare for these encounters to resemble the soft-lit images of the movies. The judge summed it up nicely – "sexual activity is rarely dignified".

Yes, we value free speech, yes, we want a vibrant and free press, and yes, the media should expose evil and corruption. But before being too censorious, consider if the boot were on the other foot – or the whip in the other hand.

Article 8 and the evolving law of privacy are here to stay – which perhaps should come as a relief to us all.

www.am-b.co.uk