The great constitutional principle of British law is that justice must be seen to be done. Until the 1998 Human Rights Act, privacy had no real protection, demonstrated by the scandalous behaviour of the media when journalists infiltrated the hospitals where Russell Harty was dying and Gordon Kaye (from 'Allo 'Allo) was coming round from a brain operation.
He later sued over this "interview under anaesthetic", but the judges despaired of finding any remedy. Article 8 of the European Convention ("Everyone has the right to respect for his private and family life...") came as a valuable reform. It did not seem to threaten the pre-eminence of the freedom of expression guaranteed in Article 10, because there was a presumption that free speech would prevail.
But things have gone badly wrong with privacy law. In a judgment banning pictures of Princess Caroline of Monaco taken in a public place, the European Court laid down an incoherent definition of privacy as protecting "a zone of interaction of a person with others, even in a public context, to ensure the development of the personality of each individual in his relations with other human beings". Now part of UK law, this psycho-babble has become the basis for protecting the "personality development" of celebrities threatened by "kiss and sell" stories from discarded lovers as well, it is said, as stories of some public import. British judges now insist that the right of free speech be "balanced" against the right to privacy when deciding whether to suppress a news story. This involves a subjective value judgement. Very often the impact on children of a father's sexually-incontinent behaviour and a dislike of tabloid sensationalism will weigh in the judicial mind more heavily than the rights of the kisser to tell or the public to know.
And in such cases, where a little knowledge is a dangerous thing, it is logical for the judge to stop the public from knowing anything: if they are told: "Mr X has obtained an injunction", they will assume the worst about his indiscretions. His privacy will be violated in the public imagination. Hence the secret court super-injunction, which gags all reference to the plaintiff and to the proceedings.
But super-injunctions, however well-intentioned, are wrong in principle, because they breach the constitutional requirement of open justice. Moreover, they do not work. The internet is full of bloggers who take delight in breaching supergags. Worse still, they work injustice when the wrong people are accused. And they bring the law into disrepute because of the perception that they are only granted to wealthy men who can afford to pay six-figure sums to lawyers to hide their moral lapses.
So what is the Human Rights solution for a Parliament that believes in free speech and open justice, as well as respect for privacy? We should put an end to the subjective judicial "balancing act" and abolish super-injunctions and privacy injunctions too. Let the press be free and allow newspapers to publish what they will without prior restraint. But legislate a new tort (civil wrong) which enables victims to sue the media post-publication for breaches of their privacy, with a right for either party to insist on trial by jury, with a power to award damages of up to £250,000. Where might the precedent for such a law be found?
Why, in the Code drafted by editors themselves for the toothless Press Complaints Commission. It purports to outlaw breaches of privacy unless justified by exposing crime or serious impropriety, protecting public health or safety, or revealing hypocrisy. Under such a law, Naomi Campbell would probably have lost (the story exposed her falsehoods), whilst Max Mosley – whose "Nazi sex orgy" turned out to be merely an old-fashioned British sex orgy – might still have won. But justice would have been seen to be done, under a law passed by Parliament, rather than created by Eurojudges, with the verdict delivered by a jury of good men and women and true.
The writer is a QC and author of 'Robertson & Nichol on Media Law' (Penguin)