Fenwick and Phillipson

"Yes. He tends to have a large number of these cases, but it has to be said – as a large number of lawyers have said in his defence – what he is actually doing is applying established principles as laid down by the European Courts of Human Rights. The question is, is the European Courts of Human Rights correct in their decisions? What they are saying is that unless you’re writing about something political – political speech is the most important of all – everything else gets a considerably lower rating. For example, the decision on the Princess of Monaco, Princess Caroline case. They’ve said that although in some cases Princess Caroline may be a celebrity cause she’s a princess, she doesn’t normally carry out royal duties and therefore has the right to be treated like everybody else. I thought that was quite odd as she wants to go around being called “Princess Caroline”. If she wanted to be called “Caroline Smith” I don’t think anyone would care, but you can’t be one thing, then another and then pick – at least I don’t think you should. But that the decision that was made by the European Court of Human Rights: that effectively celebrities on the street can declare that they’re not celebrities and you have to leave them alone. You don’t know if you can take pictures or not. There was a case earlier this month concerning a doctor who was involved with the Inland Revenue about what she could claim against from her income tax, expenses for going on conferences, educational courses, things that helped her do her job better and so forth. Now she actually won her argument with the Inland Revenue about the taxes and expenses and all the rest of it, but afterwards this doctor goes back, contacts the judge and says: ‘I’d like you to anonymise the judgment please, as I don’t want people knowing my personal affairs.’ Yes. His answer was, ‘That’s not going to work.’ And the reason was that all the hearings had been in public. Effectively it was unworkable. But it was a new matter that her matters had been dealt with in court and although the information might be public it was not necessary to identify the people involved. Had she won her case, everyone would be saying that they are entitled not to be identified in the courts to this that and the other. We’ve had it in criminal cases already. For example, there was a case that went to the Court of Appeal with five judges – normally there’s only three. It was a case in which a judge had made an anonymity order prohibiting the media from identifying a man, who had admitted to indecent photographs and pornographic photographs of children, because he had two little girls. The pictures weren’t of the girls, they just happened to be his daughters. But the judge decided that their privacy overrode the right of the media to report who’s in court and who’s being convicted of crimes. There’s a crossing of the wires, right? In the old days if you were going to run a story on the Duke of X or the Earl of Y doing something with a bunch of girls in a nightclub or whatever else, the only way he could stop it was to go get an injunction from the High Court. But he could only do it if he could prove they didn’t have a chance of winning if he sued them. Support Five Books Five Books interviews are expensive to produce. If you're enjoying this interview, please support us by donating a small amount . It’s a rule known as Prior Restraint. If the newspaper says that they’re going to prove what they say is true they can publish it; and if they’re wrong they’ll pay damages, possibly related damages too. Now, they say ‘a newspaper wants to misuse my private information’ and they will almost invariably get the injunction because if they don’t get the injunction and the story is out, the damage is done. They say in defamation law your reputation can be restored because you get damages and public vindication, whereas in privacy law once the information is out in the public domain, you can’t put it back. What is happening is that people are using privacy as a way of stopping stories from getting published."