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“German was spoken”

Categories: McKennitt v. Ash +
Monday, Aug 16, 2010

Stephen Glover, media commentator in the Independent, writes today about Mr Justice Eady’s latest injunction on privacy grounds, this time to do with the golfer Colin Montgomerie. Bizarrely, no one seems to know whether this is a so-called super-injunction, or simply a common-or-garden injunction: “Mr Justice Eady has […] moved the goalposts” Glover writes. “And yet it is not clear exactly where they have been moved to”.

In a memorable phrase, Glover also reminds us about Eady’s judgement in the 2008 Max Mosley case, in which the judge decided Mosley had not been involved in a “Nazi orgy”, just a common-or-garden one, despite the fact that:

“Some of the participants donned uniforms for the occasion. Blood was shed, humiliations inflicted, and German spoken in a sado-masochistic free-for-all.”

Which is, I suppose, Glover’s way of saying “You could have fooled me”…

Postscript: In today’s Daily Telegraph there is an interview with Lord McNally, a Lib-Dem minister in the Ministry of Justice, who says there is a need for Parliament to devise a privacy law in order to remove the courts’ ability to develop case law in this area: “There was a danger that we were getting towards having privacy law by judicial decision,” McNally says. “If we are going to have a privacy law it should be openly debated and freely decided by Parliament.”

As I’ve said before, I’m not so sure a privacy law is the solution, and I see nothing wrong in principle with this aspect of the law developed as case law by the courts. The real problem, it seems to me, is that the courts – and Mr Justice Eady in particular – have created a serious imbalance between Article 8 and Article 10 of the ECHR, much too much in favour of the former, i.e. in favour of privacy protection at the expense of press freedom.

(This is of course where the McKennitt v. Ash judgement became pivotal, in the sense that it “allowed for” the subsequent judgements to happen, including Mosley, in all its absurdities).

Postscript 2… And then there was another super-injunction, this time by an England footballer…

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