New senior media judge to play important role in balancing of rights

15 September 2010 by Adam Wagner

Eady to go

The Lord Chief Justice has announced the appointment of Mr Justice Tugendhat as Judge in charge of the Jury and Non-Jury Lists with effect from 1 October 2010. This makes him the senior ‘media judge’ in England and Wales, and he will play an important role in balancing rights to privacy against freedom of expression.

The Jury and Non-Jury lists contains general civil law, including defamation and privacy. The Judge in charge has responsibility for managing the work in the lists and assigning judges to cases.

Mr Justice Tugendhat succeeds Mr Justice Eady, who has presided over many of the important libel and defamation cases in the past decade. Mr Justice Eady’s decisions have often been controversial, and he has sometimes been accused of introducing a judge-made privacy law. Daily Mail editor Paul Dacre was a notable critic, accusing Mr Justice Eady in 2008 of “arrogant and amoral judgments” and arguing that “[t]he freedom of the press is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression”

Any student of human rights will know that it was not Mr Justice Eady who invented privacy law. Rather, the Human Rights Act 1998 explicitly provides a right to privacy under Article 8. That right is qualified, which means it can be breached in certain scenarios, such as in instances where it is trumped by freedom of expression rights under Article 10. The senior media judge will inevitably have an impact on how this delicate balance operates in practice. And judges who set the balance in favour of privacy over free expression runs the risk of being criticised in the press, which understandably has its own vested interest in supporting freedom of expression.

Mr Justice (Sir Michael George) Tugendhat was called to the Bar in 1972. He was appointed a Recorder in 1994 and a QC in 1986. In 2003 he was appointed a High Court Judge in the Queen’s Bench Division. He is a well-known and respected media law expert, and presided over the controversial John Terry ‘super-injunction’ case. Inforrm’s Blog has posted a profile, including a section on human rights cases he has presided over:

As a judge, he has on a number of occasions given careful consideration to the interaction between privacy, human rights and libel.  In particular, in W v Westminster([2005] EWHC 102 (QB)) and Clift v Slough BC [2009] EWHC 1550 (QB)) he provided remedies to claimants against public authorities in circumstances where the application of conventional libel principles might have appeared to lead to their refusal.

Read more:

• Rooney, Coulson and Hague scandals reveal the need for more, not less, press protection
• Press freedom defeat continues to sting
• Super injunctions, bad habits and secret justice

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