Eady J was keen to point out that, strictly speaking, his judgment in Max Mosley’s case does not involve any radical development of the law:

It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles (para. 234 of the judgment).

In a sense, he’s right: to lawyers in this field there is indeed nothing new in the idea that it’s now possible to go to court to complain of a breach of privacy under the approach developed by Eady J himself at first instance, and approved by the Court of Appeal, in McKennitt v Ash, following Campbell v MGN in which the House of Lords recognised this new form of action. Nor is there anything new in the principles Eady J applied – just as he said. He asked first, whether Max Mosley had a reasonable expectation of privacy in the circumstances; he concluded that he did. And he asked, secondly, if, weighing the competing Convention rights to privacy on one hand and freedom of expression of the other, there is any countervailing public interest justifying the intrusion. He concluded that there wasn’t.

But in spite of this relative legal familiarity, at least to human rights and media law specialists, I think the case may announce to the general public the arrival of this relatively new privacy law more effectively than the Campbell case did. Perhaps it’s the timing; perhaps it’s the kinky sex. But I think this judgment may be taken general note of, and that people may realise this wasn’t a libel case, but a right to privacy case. It’s also interesting in itself for Eady J’s reasoning. Although much of the judgment is taken up with the question whether Max Mosley’s “party” had a Nazi element or theme to it (the judge found it didn’t), Eady J makes a number of judicial suggestions, assumptions and implications in his judgment that may contribute fruitfully to further development in this area.

The first thing worth saying is that at the first stage, when deciding if there is a reasonable expectation of privacy, Eady J states as a general principle that if you have sex with someone you can reasonably expect them to keep that, or at least the details of what you got up to with them, confidential. In that sense, to kiss and tell is to commit an “old-fashioned breach of confidence” as the judge put it, even if the Human Rights Act didn’t exist.

More controversially, though, Eady J holds that the fact you pay a prostitute makes no difference. I wonder if this principle is really sustainable, given the exploitation and danger to women involved in prostitution, and the way it feeds organised crime.

Thirdly, Eady J’s judgment is noticeably friendly towards kinky sex and the people who go in for it. Not only does he not see the fact that sex involves “S&M” as making any difference to his general principle about confidentiality (the judgment displays the usual hilarious judicial style when discussing thing like spanking, and Eady J delightfully refers to the ladies Mosley was friendly with as dominatrices – who says a knowledge of Latin’s old hat in law?). He almost goes as far as to suggest that the unwritten confidentiality code within the BDSM community adds something to a participant’s legal expectation of privacy. I say almost; he doesn’t quite say that in terms. But at paragraphs 105 and 106 I think his judgment is “visibly coloured” (to adapt a phrase he uses later in the judgment, when discussing the facts) by the idea.

What’s more, Eady J delivers a welcome judicial flogging to the famous House of Lords decision in Brown. Or perhaps a better metaphor would be to say that he ties it down very firmly to its own facts, insisting on “some sense of reality” in the face of the News of the World’s argument that Mosley’s spanking amounted to a criminal offence and should therefore be exposed. Of course what he says doesn’t it itself affect the authority of Brown. But I think it’s an important judicial comment that will help Brown on the way to being recognised as an anomalous case, fundamentally deciding there is some limit to the kinds of assault that can be legally justified by consent, a principle that is however only really relevant in fairly extreme cases. By the end of his judgment, Eady J makes the News of the World’s argument that spanking is depraved, immoral and criminal seem as old-fashioned as similar attitudes about homosexuality.

A last interesting point on law and sex: Eady J says at para. 122 that

It is probably right to acknowledge that private fantasies should not in themselves be subjected to legal scrutiny by the courts, but when they are acted out that is not necessarily so.

Again, I’m not sure this is really sustainable, unless qualified in relation to fantasies about children; I can see a legitimate place for the courts if people are barred from working with children on the basis of their sex fantasies. But it’s an interesting thought.

There’s lots more of interest in the judgment: Eady J says (para. 112) that newspapers can properly try to defend breaches of privacy using public interest arguments they only think of after publication; importantly, he floats – presumably for the benefit of the Court of Appeal, if it comes to consider this case or one like it – that perhaps courts should consider when balancing free speech against privacy the extent to which journalists acted responsibly; and he says that the extent to which someone like Max Mosley is exposed because of his own irresponsibility is relevant to assessing damages. Finally, he holds (after I think a rather confused discussion of whether the new breach of privacy action is a tort) that exemplary damages are not available in such a case.

So this is, if not a landmark in the strict sense of precedent, then at least an important further contribution by Eady J to the development of our law on privacy.

I’ve just one criticism of the analytical structure the courts are adopting: at stage 2, once a reasonable expectation of privacy has been established, when balancing free speech and privacy and deciding whether intrusion is justified the courts so far – and Eady J in this case – have tended to lose sight of the terms of article 8(2) and 10(2) and the need for the public interest question to be analysed specifically in those terms, so that courts consciously decide, for instance, whether a newspaper story is justified for the prevention of crime or the protection of morals, or whether ruling it in breach of privacy is justified for the protection of the reputation or rights of others. I think at the moment under Eady J’s “new methodology”, the courts have shown a tendency to forget this framework and talk in rather loose ways about balancing rights, jumping prematurely to a consideration of proportionality alone.

It’s available now thanks to the lovely BAILII. I’ve not read it yet: but I’ll post about it later today when I’ve had a chance to. From what the judge appears to have said it looks as though there’s nothing really legally new in it. That doesn’t mean it’s not important, though.