High-profile barrister Hugh Tomlinson QC says privacy law is good, if properly defined and enforced
Hugh Tomlinson QC has become renowned for making clients anonymous. It is his persuasive charm that regularly ensures celebrities' alleged infidelities or other indiscretions are not exposed in the tabloids. He is the leading securer of privacy injunctions.
His prominent ? although sometimes invisible ? customers have included Sir Fred Goodwin, former head of RBS and Chris Hutcheson, father-in-law of the chef Gordon Ramsay, as well as footballers and television personalities whose true identities are concealed behind random series of letters: CTB, DFT, POI, AJH, and MJN.
That celebrities have been unmasked in parliament, on Twitter, or on the web ? becoming more celebrated than intended ? has not dented Tomlinson's belief in strict judicial enforcement of privacy rights. "Rules have been laid down," he says. "The fact the law is difficult to enforce doesn't mean you don't try to enforce it."
Yet no one would suggest such a jovial man ? who clearly relishes the interplay of argument and runs the influential Inforrm legal blog about media law ? of being a prude or adopting a secretive lifestyle.
Tomlinson himself appears bemused that he has gained the status of preserver of reputations for those wealthy and desperate enough to need a privacy order. But the 57-year-old is in no doubt that the 1998 Human Rights Act provides clear authority for protecting those who wish to prevent details of their extra-marital sex lives being paraded through the media.
"The current legal position has got the balance essentially right," he says. "If things are private they shouldn't become public unless there's public interest in doing so. The main point of contention is that the press say that if someone is having an adulterous affair, that's something that should be exposed. The judges don't agree.
"They draw the line that [publication is only allowed] where there's misconduct the law recognises, for example, criminal and regulatory misconduct or hypocritical misleading of the public."
That such a broad definition has been adopted by British judges has shocked the media, particularly those that rely on "kiss and tell" stories.
"If anyone had misled the public as to whether they had a drug habit or medical condition, they would never obtain a privacy injunction," he adds. "In the end someone has to decide on the public interest. It can't be editors who have an obvious axe to grind. It can't be parliamentarians because they don't have the evidence on the particular facts of [each] case. Judges form the only available institution to make the decisions."
Tomlinson studied philosophy, not law, at university, pursuing research, after Oxford, at Sussex and Paris. He has translated seven books of the post-modernist French thinker Gilles Deleuze, one of whose more enigmatic sayings states: "A concept is a brick. It can be used to build a courthouse of reason. Or it can be thrown through the window."
Having joined the bar in 1983, Tomlinson became a QC in 2002. He has co-authored textbooks on suing the police and the law of human rights, which at 2,000 pages, as he points out, is 50% longer than the Bible. "I began as a barrister who did everything; a bit of crime, commercial and family law. Then I began working with George Carmen, the head of my chambers, on a few big libel cases, such as Virgin v British Airways.
"Having written a book on human rights and knowing media law meant that I was instructed in cases related to privacy." Other clients have included the footballer Rio Ferdinand and the Prince of Wales during his legal battle with the Mail on Sunday over his travel diaries.
Tomlinson is a member ? alongside Cherie Booth, Professor Philippe Sands and the former DPP Lord Macdonald ? of the London-based Matrix chambers.
The courts' recent decision to stage more privacy cases, where possible, in public has reinforced Tomlinson's profile. He has appeared four times in the court of appeal on privacy cases in the past six months. He has regularly been instructed by Schillings, the solicitors which have also pioneered privacy injunctions.
He prefers less puzzling titles for cases than the random, alphabetic sequences that look like they have been devised by an amateur cryptologist. "The royal courts of justice's computer needs at least three letters," he says. "They are made up on the spur of the moment. I have tried to introduce real names. We called one last year 'The author of a Blog v The Times'."
Privacy injunctions can cost a client between �5,000 and �50,000. Tomlinson is complimentary about the recent report by the Master of the Rolls but disagrees with one of its main recommendations: inviting the media into injunction application hearings. It would make the procedure more difficult and increase costs, he believes. "The press can already apply to discharge an order."
He does not always represent the applicant. Last year, he appeared for a soul singer, Adakini Ntuli, challenging a superinjunction which prevented her revealing she had had an affair with the Take That member Howard Donald. "It was the first case where a superinjunction was challenged in the court of appeal," he recounts.
Does he believe Britain is heading towards a French-style, more protective privacy law? "There's a very slow but obvious convergence between European legal systems. Aspects of the approach in France are coming into English law. We are becoming more French."
The recent setbacks to privacy injunctions do not discourage him. "What's important to me is the protection of my clients. A barrister's job is to go to court and argue the best possible case on behalf of his or her client.
"After this outburst of public hysteria over gagging orders, people will get to the bottom of it and realise there's not much in it. That may be helpful to people who want to protect their privacy."
A privacy law was first proposed in parliament in 1961. He would like to see the issue debated in the Commons: "It's perfectly proper and sensible for parliament to give general guidance.
"It's important to have a public consensus about privacy law ? to have wider agreement about where the boundaries should be so that every one knows where they stand."
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