 Rwy'n fawr, prof. Bentley, Julia Powles ac y Llywodraeth Llywodraeth Cymru. Rwy'n fawr, wrth gwrs, i Julia, o'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny. Rwy'n fawr, wrth gwrs, roi'n cael cymryd yn Cambol ac yn cynnogrwyll wedi'i gweithio'r ysgolodau'r Hwyl. Rwy'n fawr, rwy'n gweithio'r hynny, oherwydd rôl. Rwy'n gweithio'r cymryd yn y Cambol, ddyn nhw, yn 6 yw, rydyn ni'n gweithio'r hynny'n gweithio'r hynny'n gweithio'r hynny. mae'n gweithio, mae wedi bod yn rhan oeddo'r gweithio i ysgolion. Mae'r ddweud yn gweithio a'n gwneud cael cael canbald, mae'n gweithio a'r hwn, mae'n gweithio a'r hwn yn ei gweithio i'r gweithio i'r gwaith, mae'n gweithio i'r gweithio i'r hwn yn anodol, mae'n gweithio i'r ddweud o ran ychydig o'r cyfle o'r cyflomau canbald i'r llwyddoch i'r hyn o'r ddweud o'r ddweud o'r ddweudio i'r cyflomau. I will come on to the facts of the Campbell case briefly a little bit later on, but firstly just moving on with the chronology. In 2008 there was a case of Murray and Big Pictures. There a 19-month-old claimant sued a paparazzi agency via his parents as litigation ex-friends. His mother was JK Rowling. The case extended privacy protection to children. It had been believed by the media up until this point that the children of celebrities or the children of public figures had no rights at all in this area. It was argued unsuccessfully that children, especially pre-sentient infants, were not in top to protection because they could not suffer damage or distress. This was because in the Murray case the 19-month-old boy was blissfully unaware he was being photographed as he was being pushed to the streets of Edinburgh and, as he didn't read the newspaper either, he wasn't aware that the photograph was subsequently published. These cases are in effect a tension between two competing convention rights, neither of which are supposed to have automatic priority over the other. We have article 8 free speech on the one hand and article 10 free speech on the one hand, article 8 respect for family and private life. The approved methodology for resolving this tension is twofold. Firstly, the question is asked, is article 8 engaged at all? In other words, following Campbell, does the claimant have a reasonable expectation of privacy? That's the threshold test for privacy. Interestingly, there's no threshold test at all for article 10 so that to the extent that article 10, to that extent, article 10 may already have something of an advantage over article 8. The second part of the test is as follows. If both articles 8 and 10 are engaged, then there needs to be an intense focus applied to decide which one will have priority on the facts. That's the methodology that came from Campbell and that was articulated and subsequently confirmed by Lord Stain in Re-S. But this second part of the test is really an exercise in proportionality. The Naomi Campbell case is a good example of this methodology because of the five pieces of information in question in that case, the fifth being a photograph. The first two were accepted by the trial judge not to be protectable at all on the facts. The remaining three pieces of information were held to be protectable. The Court of Appeal unanimously disagreed saying none of the five elements were protectable. But on appeal to the House of Lords, the two most senior law Lords, Lords Nichols and Lords Hoffman, disagreed by the trial judge. But the remaining three judges in the House of Lords agreed with him. Now, as Piers Morgan, then the editor of the mirror and now a celebrity himself, bitterly observed at the time, more judges had found in the mirror's favour at this point and had found in Naomi Campbell's. It was something, I think it was five-four at that point. But the soundbite was rectified later on when the mirror sought unsuccessfully to overturn the Campbell ruling in Strasbourg. It's a useful comparative exercise to contrast privacy as it's now developed with the law of libel. And the question is sometimes asked, is privacy the new libel? The three areas which I want to briefly contrast libel with privacy the first is the issue of false information, the second is damages and the third is injunctive relief. Now, historically libel's been concerned with false information and breach of confidence has been concerned with true information. In confidence we speak of information having the necessary quality of confidence about it, which was an observation by the Vice Chancellor and Coco vs Clark in 1969. Logically, therefore, for breach of confidence, the information needs to be true, but the emergence of privacy has blurred the edges considerably. If false information about an area of someone's private life is published, it's still an interference with their private and family life as it puts the information into circulation. The person involved may be forced to explain or deny it. If he does neither, he'll be deemed to have admitted it, so this is not an attractive position to be in. At a practical level it could encourage inaccurate reporting if private false information was not actionable. A key issue in Campbell was that some of the information was wrong, but the Lords held this disintight of the claimant from succeeding. The point was also addressed in McKennitt and Ash, a case involving a Canadian folk singer in 2008, where Lord Justice Longmore said, the question in a case of misuse of private information is whether the information is private, not whether it's true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entirely protected, and judges should be very cherry at becoming sidetracked into that irrelevant inquiry. We've seen for a number of subsequent decisions that judges have unfortunately become sidetracked into that inquiry. Whilst no privacy case has so far succeeded where all the information was false, in a case approximately 18 months ago with Brad, Peter and Angelina Jolie suing the news of the world, all of the information was false in that case. The claim was framed in privacy and not in liable, and the defendant settled the case on very respectable terms before trial. Anyone who saw the article, it was a front page article, and it talked about their impending divorce, the arrangements which were being made for their children, specific details about alimony, et cetera, but of course, as everyone knows, with the possible exception of the editor of the news of the world, the couple were not even married and the story was completely false. The second area of contrast between liable and privacy is damages. Damages in privacy were always regarded as inferior to liable in two respects. Firstly, quantum, in Campbell for example, the award was £4,500, which is very small. That's since been corrected in the Max Mosley case against the news of the world, where the judge said he'd come to the conclusion that a right award taking everything into account was £60,000, so that's a much more comparable award to the type of award you'd expect in liable. The second area of contrast is punitive damages. They're rarely awarded in liable now, but they are available, and they've been severely capped. In the Mosley case, the court said that they were not available in privacy, but the Joint Committee on Privacy and Injunctions, which reported on 12 March this year, has now recommended that punitive damages be made available in privacy, possibly as a result of the background of massive phone hacking. The third area where a contrast is of importance is that of injunctions. Strasbourg jurisprudence requires that remedies for breach of convention rights must be practical and effective. That's a case of airy versus Ireland, where it was said that convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective. In liable, Bonnard and Perriman, a case decided in 1891, held that interim injunctions for liable are not available. A liable claimant can always publicly deny the allegations, and the theory is that when a court increasingly a judge is juries are currently out of favour with the judiciary, makes an award of damages, it vindicates a claimant's reputation. But the same process is not available in privacy, at least not where the information is true, because a verdict will only confirm the truth of the information and cause further embarrassment and widespread publication of the information through court reporting. Often an injunction is the only practical and effective remedy in privacy, and this is why super injunctions and injunctions generally have become a real battleground. If an injunction is not available, either because a claimant doesn't know in advance that an article is about to be published, or because the court refuses one on some ground, the damage has been done. The press strategy is twofold. Firstly, it's a strategy of secrecy to prevent a claimant knowing about a story. The news of the world in particular were very adept at locking down their offices on a Saturday afternoon and not contacting a claimant to tell them about the story that was being published because they feared an application for an injunction would be made. The second element of the media strategy is they know that a claimant is unwilling to bring claims to trial in privacy cases, as opposed to liable cases, due to the risk of adverse publicity. Max Mosley applied to Strasbourg for a ruling that the media should have a legal obligation to notify someone before interfering with their ask a late rights, and that's called prior notification. That was refused, as you know, and the Joint Committee on Privacy and Injunctions have said that although they can't support prior notification as a statutory requirement, it should be part of the press's voluntary code, subject to various public interest exceptions. I'm not at the moment referring to super injunctions, but to ordinary privacy injunctions. I expect you to know the difference. In a privacy injunction, a claimant is named, and the defendant, often but not always someone who's demanded money from the claimant, is enjoined not to publish the private information. As a condition of getting protection against newspapers as well, it's necessary to serve them either with the application for the injunction, or with the injunction itself. This is a case called Attorney General and Guardian newspapers. It's called the spy capture effect. If you'll serve with an injunction, even if you're not a defendant, if you commit an act which is contrary to its terms, you're in contempt of court. So the media have had opportunities to oppose injunctions, because in most privacy injunction cases they have been served at some stage. And what's very clear is that this is not secret justice, because the media invariably oppose the grant of injunctions. But that's the nature of the problem. The injunction would state the general area of information being protected and unscrupulous elements in the media served with the order could then tell their friends about it, or, as we've seen, make anonymous postings about it on the internet to undermine the injunction, believing that their identity will remain private. And someone who publishes that information, who's unaware of the terms of the injunction, cannot be guilty of contempt of court. And if a publish is asked where he got the information from, he's entitled to say he is protecting his source, even if it's a journalist who's been served with an injunction. So the problem with ordinary injunctions was that the media were allowed to name the claimant. This led to press reporting the existence of the injunction and introducing into their reports tidbits of information, which by itself were not preachers of the injunction, but over time could build up a picture of exactly what the information was that was the subject of the injunction. This was compounded by people on social networking sites trying to guess what the information was, so it would often start a guessing game if someone obtained a privacy injunction. I wonder what he's done, and before you know it, all sorts of speculation is going up on the internet. It therefore became necessary to counteract this, and this is where the super injunction developed. That also forbade the media from reporting on who the claimant was. Obviously, the media know who the claimant is, but they're not allowed to publish their name. But the problem with what's called jigsaw identification still arose because different media would give different descriptions of the claimant, but without actually naming him. And when you put the various descriptions together, this could identify the claimant. Onora O'Neill, giving the reflector in 2002, so quite presciently, that the new information technologies may be anti-authoritarian, but curiously they are often used in ways that are anti-democratic. Undermining court orders and the rule of law may be a good example of that. However, in the vast majority of cases, injunctions have been effective. Over the last year there have been very few super injunctions. I think there's only been one against the media. The following list is not comprehensive of the reasons, but it gives you an idea. The first, and I think the main reason there have been no super injunctions, is that the media have been extremely cautious. They're concerned about the Levinson inquiry. They're also concerned about various parliamentary committees. They're also trying to see a new defamation bill passed, which would severely restrict the rights of individuals to sue the press. The question is, will it be business as usual again once these inquirers and committees have exhausted themselves? But that's a position now that Levinson has paradoxically prevented the very activities which Levinson has been tasked to look into. The second very important element is the demise of the news of the world last July. A phoenix hasn't yet risen from the ashes, so we still have the situation where particularly objectionable stories are not generally appearing on in Sunday newspapers. The third reason for the absence of super injunctions is journalists and other people leaking injunction details onto the internet, which has discouraged some people from bringing claims where it might otherwise have been appropriate. I think it's also fair to say that following pretty vicious media attacks on the judiciary, both generally and specific judges, there appears to have been a judicial regime change at the Royal Court of Justice, and the judges now seem to be much more unsympathetic to claimants in privacy cases, particularly where it involves sexual indiscretions. Importantly, the joint committee that I mentioned earlier now recommended that Google must take steps to remove material from the internet which breaches court orders, and if they refuse to do so legislation should be passed. That's an important development if it goes through, because Google and such like were very much the Achilles heel of super injunctions. Those were the domestic developments to date. I now want to talk about Europe very briefly. There have been a few developments there, two cases in the European Court of Human Rights, and a draft European Union data directive. The first case of note is Axel Springer and Germany, which was decided in February. There Axel Springer were the publishers of Bill, which is a well-known tabloid magazine in Germany. X is a well-known TV actor who played the role of a police superintendent in a long-running police drama in Germany. He was arrested at the Munich Oktoberfest with a small supply of cocaine. It was not his first offence and published articles about his arrest and subsequent conviction to which he objected. Now, critical to an understanding of this case is the cultural differences in Germany, where they do not generally publish the names and addresses of persons convicted of mid-tier or low-level offences, which these were. Each of the three tiers of the German courts found that publication of the actor's name was not necessary under Article 8, but the Grand Chamber of the European Court reversed that finding by a majority. The result was perhaps not surprising when judged against an English background, where we routinely published details of anyone convicted of anything. So, I think the real impact of the Axel Springer case is likely to be in Germany and in other countries in which they did not usually publish the name of people who have been convicted of offences, but it's unlikely to have any impact in this country. The dissenting judgement of the Grand Chamber is of note. Their complaint, which appears to be quite well founded, is that the ground rules have been changed for references to the European Court. The procedure to date, as everyone understood it to be, was that the European Court would only get involved if a decision was manifestly wrong. Now they're saying they're prepared to get involved and review a decision if there are strong reasons to do so, which is generally guarded as a much lower threshold than they applied previously. The effect of this, as some of the Grand Chamber dissenting judges have mentioned, is to create or effectively to make the European Court a fourth tier of appeal, which means more appeals, more expense and more delays in getting these cases resolved. They did also set out quite helpfully a six-point approach for the national courts to take when balancing articles eight and ten, which is worth consulting, but which I'm afraid there isn't time to discuss this evening. The second case decided on the same day by exactly the same judges is von Hanover number two in Germany. Von Hanover is of course the family name of Princess Caroline, and in this case the Grand Chamber had to decide on three articles which contained photographs of Princess Caroline on skiing holidays. The difference in the articles concerned the use to which the photographs were being put. In the first, the two articles were about holidays themselves or other fairly inconsequential activities. The German courts impeccably applied the previous European Court decision of von Hanover number one and found that these magazine articles were clear breaches of Princess Caroline's article eight rights on the basis that generally speaking what she did on holiday was her own business. The third article they said was different. It used a photograph of her skiing to illustrate a story saying what she was doing was to her father Prince Rainier was seriously ill, namely she'd gone skiing. It was held by the German courts and upheld by the Grand Chamber that there was a public interest in this story which justified the use of the photograph. Now I regard that as an extremely doubtful decision for two reasons. Firstly it means you can justify almost any invasion of privacy if someone's relative is both important and unwell. The justification being that you're telling the public what this person does at a time when their important relative is perhaps dying. So paradoxically at a time when you perhaps need most protection against intrusion, namely when a close relative is seriously ill or dying, your family life will receive less protection rather than more. I think the second point of note is to ask well what did this photograph contribute to a debate of national interest? What does it tell us about the character of Princess Caroline? Well nothing at all I think. Many people faced with illness or death might well take the decision they should try and carry on as normal, particularly where the person has young children. In fact this photograph was published in February 2002 and Prince Rainier died in April 2005 after a long illness. So were Axel Springer, the publishers in this case also really expected, sorry was Princess Caroline really expected in this case to keep a bedside vigil for three years? That's really the effect of the decision. Lady Justice Arden, in a recent speech to Cardiff Law School in March this year, said twice that she regarded the decision as borderline, which is perhaps a judicial euphemism for unsound. I would suggest that that case would not necessarily be decided the same way in this country. The third European development to be noted if only briefly is the right to be forgotten. This raises the question whether you ever have the right to be rehabilitated. It has profound implications for the internet. Now we have a UK rehabilitation of offenders act but it's fairly ineffectual and largely directed to spent convictions, where there's been a substantial prison sentence. But there's now a new draft EU data protection regulation intended to establish a right to be forgotten. There are three possible categories of information which it might cover. What it will actually cover depends upon the definition of data which will be decided on in due course. But at the moment the three possible categories are as follows. First is information which you upload about yourself. Second copies of that information which may be made by other people. And thirdly what other people put up on the internet about you. And you can see as you go down that list it becomes increasingly more controversial. It's very important because depending on the precise form of these regulations when they're promulgated an internet service provider like Google can be required to erase the information. So it's not a question of going to the website itself. It's a question of going to Google and they can erase the information centrally. The question of compliance is also interesting as well because this really does have a sting in the tail of these regulations. The company involved, Google in this instance, can be fined up to 1 million euros or 2% of its turnover for failure to comply. So one can see that given the extent of US control and interest in the internet through Facebook, Twitter, Google, Yahoo etc. This is going to be potentially a very interesting confrontation between the USA and the European Union. So I should say a few words about the position in the United States. The First Amendment as you I'm sure know basically provides that Congress shall pass no law which abridges the privileges of the press. In other words, free speech rules in the States. Now whatever this was originally intended to mean it's been interpreted through a series of Supreme Court decisions in the 1960s onwards to mean if you're a public figure, if you're in a public place or if you are newsworthy you are basically stripped of any protection in privacy and indeed as well as in libel. In libel the exception is you need to prove malice. So the critical question then is what is a celebrity or what is a public figure? There was a case in the northern district of California in December called Fraily versus Facebook. Now in that case Facebook used the names and likenesses of Facebook users to bolster advertisements of specific products which it knew the Facebook user liked. The plaintiffs contended they were celebrities to their Facebook friends and therefore that they'd suffered economic injury. The court indicated that precisely because they were celebrities or public figures, albeit to a limited audience, the newsworthiness public figure defences applied from the First Amendment. So the likelihood is that they will not be able to succeed in that claim for that reason. It illustrates that Europe, unlike Europe where a more nuanced, balanced approach is taken to convention rights. In the USA the law has reached the stage where if you are newsworthy, as decided by the media, then by definition you are not in general entitled to protection. If of course you're not newsworthy then the media will not be writing about you so the problem does not arise and this might be called the paradox of the First Amendment. In England the judiciary decide the vital issue when publication is or is not in the public interest. In the USA because of the First Amendment and the degree of deference shown there to the media it means that it's tantamount on the media deciding the point. Professor Solovey from George Washington University in his book The Future of Reputation, Gossip, Rumour and Privacy gives a number of instances where US law is impotent to prevent what we might regard as the most egregious invasions of privacy. He cites instances of film crews filming up ladies skirts at the New York metro station and elderly lady who was tripped into explicit photographs when she was very young and in each case the ladies involved suddenly saw these images posted onto the internet and could do nothing about it. In addition they have many what are called revenge websites where you can post explicit photographs of your ex-girlfriend or ex-boyfriend if you wish to and in all these cases it's impossible to get the material removed in the US. I see some people smiling in the audience so I think I may have given them some ideas. I mention these instances partly to catch your attention but also to demonstrate that even within the US the First Amendment certainly has its critics. The authors of a recent Stanford law review article earlier this year took some comfort from the fact that according to them Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice. They may be right. The same may be said of Americans who've introduced a privacy right on one hand but then have taken it away in respect of material that's newsworthy. So now the future of privacy very briefly. US privacy law will continue to decline as the class of celebrities increases. In Europe although Axel Springer and Von Hanover might suggest some minor retrenchment in European privacy law, in my view it's likely to hold its ground given article 8 is a fundamental human right and secondly we may see some progress in increasing privacy rights through these data protection regulations if and when they're promulgated but the gulf between the First Amendment, the US approach and the European approach will certainly increase and be the source of tension. Now that news international's grip over public life has been lessened it's to be hoped that the rule of law will be enforced where journalists use the anonymity of the internet to breach court orders. The Attorney General whose job it is to prosecute breaches of court orders has arguably been very lax in enforcing clear contempts of court orders online. The Joint Committee of the House of Laws and House of Commons has urged the Attorney General to be more active in bringing contempt proceedings for online breaches of injunctions and the Attorney General has said he will. So we'll have to watch this space. In relation to regulation of the press the PCC code is generally very good. The problem with the regulation is the PCC itself. It's heavily represented by poachers, newspaper men especially editors have not distinguished themselves as being impartial in balancing individual privacy and free speech rights partly because they see free speech as synonymous with their own commercial rights and yet this is likely they are likely to be the biggest single group even under a reconstituted PCC so we're still going to see even when the PCC has gone ex-newspaper men and some serving editors forming a substantial minority group within the new PCC. The Leveson report and what the government does about it will obviously be critical and I can't predict what's going to happen there but it's been a feature of the Murdoch era that governments will not generally curb press excesses and it remains to be seen whether that will continue. A brief word about phone hacking, we were told it was a rogue reporter some years ago the lone gunman theory now we're told it's a rogue newspaper but we know for certain that email hacking has also been done by Sky News they've admitted as much to Leveson times newspapers has been hacking people's emails that came out through the nightjack case where they obtained the details of an anonymous police blogger and it may be at a coincidence that at a time of a major media lobbying against privacy this scandal was unfolding this scandal as you know was exposed by the diligence of a guardian journalist but it was assisted by privacy claims which were being brought against the news the world of phone hacking which were leading to disclosure of documents seemingly overlooked in previous police investigations but despite all this and all that's been revealed about the feral beast there are still those who say that the press should be trusted to regulate itself. Nora O'Neill and the wreath lecturer mentioned earlier said the media in particular the print media whilst deeply preoccupied with others untrustworthiness have escaped demands for accountability and that's undoubtedly the case. Do we want to be held accountable by unaccountable organisations particularly after all we've learned about the absolute power that they've wielded? Now finally for the Jerry Springer moment you've all been waiting for many of you at some future date if not now will be public figures some of you may even be celebrities the decisions that are taken now will profoundly affect your future are we entering an age where your private lives can be commoditised by the media and you're continually brought to account for the exuberances of youth perhaps an innocent posting on facebook following a night out this evening viewed in years to come by a potential employer will be your undoing or do we want a more balanced approach where only information of genuine public interest about you can be published, recorded or stored on the internet and where in the event of a dispute the decision of what's in the public interest is made by an impartial judge rather than now by a news editor or a blogger. Thank you very much.