This article by Nigel Tait first appeared in The Times newspaper on 28 May 2015
Mr Justice Mann’s judgment is a warning shot to any newspapers that may still be tempted to ride roughshod over privacy.
Privacy is something we’re entitled to take for granted. We should be able to assume that our private conversations aren’t being listened to, that we can sunbathe in our gardens in the happy belief that no one is photographing us, and that we won’t ever see our medical or sexual history published to the world at large.
What we rightfully take as a core human right is also codified in law: Article 8 of the European Convention on Human Rights provides a right to respect for an individual’s “private and family life, his home and his correspondence”, subject only to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.
So far, so obvious – save to certain newspaper groups. Deciding that making a profit was more important than observing a basic moral code, newspapers hacked people’s phones in search of titillating private information. The most well-known example is the now-defunct News of the World, but thanks to last week’s High Court judgment by Mr Justice Mann, we now know that phone hacking was endemic at Mirror Group Newspapers too.
We also now have a hugely different legal scene. Previously, the upper limit on damages for an infringement of privacy was in the region of £60,000 — the amount awarded to Formula 1 businessman Max Mosley after the News of the World falsely accused him of taking part in a “sick Nazi orgy”. In an extraordinary judgment in cases brought by eight celebrities of varying fame, the upper limit on privacy damages has just been multiplied by four.
The actress Sadie Frost suffered “a sustained period of distress and upset which has continued after the hacking stopped, [whose] effects still exist”. For this, she was awarded £260,250. The former England footballer Paul Gascoigne was awarded £188,250 and television executive Alan Yentob £85,000 (despite there being no articles about him published as a result of the hacking). Damages in total came to £1.2 million. Mr Justice Mann made clear why he was persuaded to award damages that are “far more substantial than in any hitherto reported privacy case”, citing “the fact that the invasions of privacy involved were so serious and so prolonged”.
This is a courageous judgment that comes hot on the heels of a Supreme Court ruling that had given the media cause for cheer. James Rhodes, a concert pianist, wrote an autobiography that was to be published by Canongate. His former wife had the book injuncted on the grounds that its content might cause the couple’s son harm. Cue consternation as the Court of Appeal upheld the injunction, one based on a case known as Wilkinson v Downton (1897), which is centred on compensation for nervous shock. The injunction was overturned by the Supreme Court, which said: “Freedom to report the truth is a basic right to which the law gives a very high level of protection . . . The right to report the truth is justification in itself.”
But reporting the truth, when it is based on the misuse of private information, is a different matter. And now, thanks to Mr Justice Mann, the court has shown an understanding of just how devastating an infringement of privacy can be. In the Mosley case, Mr Justice Eady noted that the claimant was “hardly exaggerating when he says that his life was ruined”. Mr Justice Mann could easily have decided that Mr Mosley’s award of £60,000 was at the top end of the scale for invasions of privacy, and he is to be applauded for awarding damages that properly reflect the distress, loss of personal autonomy and affront to dignity caused by such egregious, unjustifiable conduct.
The impact will be profound. Privacy damages have historically been much lower than Mr Mosley’s award; now they approach the accepted upper ceiling – £280,000 – for libel damages. Privacy claims can be brought on a no-win, no-fee – or conditional fee arrangement – basis, which means that in marked contrast to many other areas of law, everyone has access to justice. Mr Justice Mann’s judgment is a warning shot to any newspapers that may still be tempted to ride roughshod over our privacy – something compromised too easily and too often in recent years but which now, at last, has achieved real protection in the law.