The chaos of the apparently false allegations of criminal behaviour against an unknown presenter managed to hijack British public discourse recently, displacing discussion of actually important issues. The attention was not so much on case itself but rather the scintillating mystery. If the press had simply informed the public at the start of the identity of the person about whom the allegations were made, we could have avoided all the damaging spiral of events that culminated in defamation actions by falsely suspected presenters and Huw Edwards in hospital.

The law preventing media from naming those suspected in a criminal investigation is entirely judge made. It came about as a tortured compromise in a raging debate held solely within the cloistered legal sphere, split on the question of: how should English private law respond to the Human Rights Act 1998? That Act made article 8 of the European Convention on Human Rights, which protects a private and family life, part of domestic law. It thus required that all public authorities (including courts) respect it. Yet, English law lacked any freestanding recourse for violating “privacy”, or even much conception of a “private life”. Adding such a cause of action would be not simply developing the law, but wholesale importing a foreign legal concept. This kind of radical change, whilst desired by many, was rightly rejected by the House of Lords (in a case called Wainright v Home Office), as a matter for Parliament to decide instead.

The courts instead found a strange and artificial compromise: the new tort of “misuse of private information”, which was presented as an evolution of historic actions for breach of confidence. The firm acceptance of this new framing of the breach of confidence came in 2004 with a photo of the model Naomi Campbell outside a Narcotics Anonymous clinic. The revelation that Campbell was a drug addict and undergoing treatment for her addiction was seen as acceptable, because Campbell had publicly claimed otherwise. However, the details about specifically attending NA, the timing and nature of her meetings, and the photograph of her at NA were too far an intrusion into the “confidential” information in Campbell’s private life. The (3 against 2) majority in the House of Lords argued that the scales tilted to privacy, creating an ill-defined bespoke standard of English law. The minority argued for a different policy mix (with more emphasis on journalistic freedom to report matters). This, of course, displays the difficulty with legislating by judicial vote — one Law Lord became the deciding factor in all our media policy.

The best defence for privacy any rich businessman can have is a police investigation

Like any disputed, judicially-created policy, misuse of private information has had to be constantly changed and updated. Through a long and murky line of case law, the tort has since mutated and expanded, nowhere more so than in the case of suspects being named before arrest. In 2022, the Supreme Court in ZXC v Bloomberg unanimously decided that a criminal suspect under investigation could not generally be named. This can be referred to as pre-charge anonymity, but that is misleading. It bars the press from disclosing things about a person being investigated that may be unethical but not illegal (thus for which no charge is ever forthcoming), simply because they are related to the investigation. The result is that the best defence for privacy any rich businessman can have is a police investigation, at which point the media must simply give up and wait years for the wheels of justice to turn slowly.

This is a policy choice, made on the balance that it is better to have fewer media injuries of the sort suffered by Sir Cliff Richards. This gain is thought worth the cost of in turn creating, as John Micklethwaite has noted, more Robert Maxwells. It is not an inevitable consequence of doctrinal legal reasoning and certainly not of statute law. It is policy created from the bench, according to a particular view of the balance to be struck, and it is a consequence of a change in judicial sympathies from supporting public scrutiny to upholding a private life.

The courts have a right and duty to develop the common law, so it is entirely legitimate for them to dictate the law from the bench in this way. However, our system also recognises precisely that a majority in Parliament (which in turn is accountable to the voters) can better find the right policy balance than a majority of a five-judge panel.

This balance should seek to move the needle back towards freedom of expression, to undo the 3-2 vote that shifted it in the other direction. Parliament ought to give the courts clear guidelines to consider when balancing the two interests in individual cases, particularly under what circumstances naming is not a proportionate interference. The courts can then develop the law further based on Parliament’s choice.

Why hasn’t this sensible step already been done? Few politicians want to seem like they’re batting for the media (and, conversely, few want to fight the media, particularly close to an election). The result is that it is easier simply to let the courts muddle on. The Edwards debacle shows the pitfalls of this approach. The time has come for the government to find the courage to correct the courts.