JUDGES SEEM TO LIKE PRESS FREEDOM LESS THAN PEOPLE WHO BUY PAPERS; No Debate: Mr Justice Eady Is Developing a Privacy Law through His Ruling in This Case

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THE News Of The World has reacted to losing the privacy action brought by Max Mosley by saying: "Our press is less free today". It believes that the privacy law that arrived in Britain via the European Convention on Human Rights inhibits freedom of the press.

Rightly, the paper says that Parliament, which has always avoided legislating on privacy, has never debated the issue.

Instead judges, such as Mr Justice Eady in this case, are developing a law themselves through their rulings.

I can well understand the paper's reaction. But I am less certain that its press freedom worries are justified, despite my concern about the way in which our newspapers are more constrained than those in the United States.

At the time that the ECHR was incorporated into British law, I was one of several commentators who said that it would lead to judge-made law. However I concede that, in a sense, judges interpret all laws passed by Parliament, so there is no real difference in them doing so over privacy.

The problem, of course, is that it is impossible for journalists to discover important facts unless they are able to inquire into people's affairs.

That said, they must always have a proper justification, which editors have already agreed in a code of practice under the term "public interest". …