Should we be concerned about the recent dramatic rise in the level of privacy actions? JDG Chambers speaks to two senior lawyers on either side of the debate

Back in the early 80s, long before the development of privacy law, Robin Shaw and Keith Schilling used to work for the same law firm, Wright Webb Syrett. Today, Shaw is a defamation and privacy partner at Davenport Lyons. He is also the lawyer for Private Eye, the fortnightly satirical current affairs magazine edited by Ian Hislop, the most sued man in Britain. Shaw and Hislop have resisted an injunction sought by the former head of the Law Society, Michael Napier, and both men have been similarly influential in encouraging BBC presenter Andrew Marr to 'voluntarily' abandon his own injunction.

Schilling, on the other hand, set up the specialist law firm Schillings and represents the likes of Brad Pitt and Angelina Jolie. The celebrity couple were involved in the first false privacy case in the UK in 2010 when they used privacy laws to sue a magazine for erroneously reporting their divorce.

The two former colleagues are in agreement on the early facts surrounding the development of privacy law. Neither can be sure when the first 'super' injunction was awarded (so-called because of its blanket ban on the media mentioning the existence of the injunction itself), let alone the underlying private information.

Shaw says it was likely three years ago. Schilling puts it sometime before 2007. Whatever the exact date, both men agree that super injunctions organically evolved from the plain vanilla privacy injunction as a response to the media flouting existing injunctions via the internet and jigsaw identification – a press trick of revealing an unnamed celebrity by publishing other information that acts as an obvious signpost.

Another agreed fact is that the Human Rights Act 1998 (HRA) brought the right to a private life under article 8 of the European Convention on Human Rights into English law. The technical term for the current form of privacy law in England and Wales is misuse of private information. The tort was developed by the courts out of the existing action for breach of confidence in order to give effect to the HRA and the European Court of Human Rights (ECHR). "The HRA opened the door for judges to effectively develop the law of privacy, but they just called it by a different name," says Shaw.

The political criticism of this 'judge-made law' is therefore wide of the mark. "Parliament has legislated in favour of privacy," says Schilling. "When the previous government brought in the HRA, it said it fully expected judges to develop privacy law through the framework of the HRA and the European Convention on Human Rights, and that is what has happened."

The first privacy case to be heard in this country – and still the most important, according to both lawyers – involved Naomi Campbell suing the Daily Mirror in 2004 for publishing photographs of her leaving a drug counselling meeting on King's Road in Chelsea. Schilling acted for Campbell and the case went all the way to the House of Lords, where it was decided that the newspaper was within its rights to set the public record straight about the supermodel's substance abuse. (Campbell had previously gone on record saying that she was not a drug user in contrast to many of her peers in the fashion industry.) Where the newspaper had breached the supermodel's privacy, however, was in publishing the location of the meeting and its provider, Narcotics Anonymous. Campbell was awarded £3,500 in damages.

"The characteristic of most privacy cases is that the information involved is true, preventing the celebrity from being able to sue for libel," Shaw explains. "After the Campbell case, there is now a different kind of right which relates to things that are true. It is a right of privacy, among other things, in respect of relationships, financial affairs and medical conditions."

The development of the law following the Campbell case has involved a who's who of A-list claimants, including the Prince of Wales in 2006 and Michael Douglas and Catherine Zeta-Jones in 2007. In Murray [2008], a case involving the infant son of JK Rowling, the Court of Appeal determined that a 19-month-old boy was entitled to his privacy while being pushed in a pram down a public street by his famous mother.

It is around this area of privacy law that Shaw and Schilling begin to split along partisan lines. As counsel to celebrities, Schilling reckons that Murray brings the domestic privacy law in England and Wales in line with the stronger protection afforded to celebrities under European law. In the leading case of von Hannover [2004], an action brought by Princess Caroline of Monaco following oppressive paparazzi harassment, the European Court of Justice (ECJ) determined that taking photographs of the European royal carrying on everyday activities such as shopping in a public place could be a breach of privacy.

Shaw's media-friendly angle is that the reconciliation of European and domestic law is not as straightforward. In the Campbell case, to begin with, Baroness Hale referred to a person popping out for milk as the archetypal public act and her example was lent extra weight when Mr Justice Eady, the leading judicial architect of the current privacy case law, refused Elton John a privacy injunction in 2006 for photographs taken of him walking down the street.

"The distinction based upon whether a person is in a public or private place is no longer a useful dichotomy for the law of privacy," says Schilling, summarising the confusion at the heart of the law. "The guide should be the nature of the activity involved. If it is private, then the next question is whether there is any public interest in displacing the presumption of privacy."

But proving the public interest in a celebrity's private life – rather than the interests of the public – can be difficult for the press, admits Shaw. The infidelities of a premiership footballer, for example, will be private 99% of the time unless the footballer is on the front of a magazine playing happy families with his wife and kids.

This 'setting the record straight' justification, first seen in Campbell, can be a fertile argument for the press in front of the courts. Still, the argument is limited to the facts of each case, as Schilling points out: "Where is the public interest in seeing a picture of a celebrity in a swimming costume?"

Ultimately, this task of balancing a celebrity's right to privacy under article 8 with the media's freedom of expression through article 10 is a matter for the judges. Whatever Prime Minister David Cameron may say in public or do in Parliament, each fundamental freedom is given equal weight under the ECHR. What is more, the present Government will find it difficult to go backwards given its commitments in Europe under the ECHR. "There is no need for further legislation if all it is going to do is codify the existing law," Schilling states. "That would simply be a cynical PR trick to show that Parliament makes the law."

A report on superinjunctions is expected shortly from Lord Neuberger, the Master of the Rolls, although Shaw and Shilling have their own views on the divisive legal remedy. "One of the dangers of superinjunctions is that the hearings are held in private," warns Shaw. "We are relying on judges operating in secret to develop the law."

Schilling dismisses this idea. "It is not secret justice between the claimant and the court," he says. "The media are also involved; generally it is tripartite, which is the whole point of an injunction, as the media need to know the terms of the injunction to be bound by it. The press are given the legal right to challenge injunctions, but they are losing the battle in court. This is why they have spread the argument into the media, where their arguments can be less rigorous and do not require evidence."

Besides the Master of the Rolls and the Prime Minister, there is one other man who wants to have his say on the direction that privacy law takes. Max Mosley, the former head of the Federation Internationale de l'Automobile (FIA), received record damages of £60,000 from the News of the World after the newspaper published details in 2008 about his sadomasochistic sex life. Damages are traditionally low in privacy cases, so the sum represents a significant increase from the £3,500 awarded to Campbell.

In his judgment, Mr Justice Eady said that exemplary damages are not available in privacy cases – yet in a rare moment of agreement, both Shaw and Schilling believe that the courts will begin to use punitive damages as a way of discouraging reprehensible media intrusion. The phone-hacking scandal has the potential to determine this, in Schilling's view, should a test case reach the Court of Appeal.

But it is Mosley's appeal to the ECHR that is aiming to cement the law of privacy in celebrities' favour. He is seeking a ruling that will require newspapers to give prior notice to celebrities before publishing potentially damaging articles. Shaw sees any victory for Mosley as another nail in the coffin for the kiss-and-tell story. "At the moment, one thing papers don't need to do is notify celebrities in advance," he says. "But if Mosley gets his way, the newspapers will be obliged to approach a footballer about an affair, prior to publication, allowing the footballer to rush off to the court to get an injunction."

Not surprisingly, Schilling thinks the principle is sound and should be a tenet of responsible journalism. "The newspapers know that getting an injunction is everything. Once the story is out, people are unlikely to sue."

Judgment is expected this month from the ECHR, which heard Mosley's case at the beginning of the year. Schilling sounds uncertain of success, but instead of waiting for the notoriously slow-moving court to rule on prior notice, his law firm already offers clients 'reputation protection', a service which sets out to anticipate privacy breaches before they even reach the press.

"Traditionally, lawyers became involved after publication," he explains. "But now we are working closely with other firms, like PR companies, months before publication. We are protecting clients, for example, from the threat of improper disclosures by ex-employees or blackmailers. It is no longer restricted to getting a frantic call late on a Friday night." His firm belongs to an international network of like-minded organisations, which enables global co-ordination for protection for international clients. There is also an emergency phone number listed on the Schillings' homepage, just in case.

The metamorphosis of libel lawyers into PR-savvy reputation protectors armed with an increasingly large privacy shield, is altering the co-dependent relationship between the press and celebrities. "Superinjunctions are having a dramatic impact on the ability of tabloid newspapers to titillate their readers," says Shaw, with a sincerity that invites sympathy for Fleet Street at a time when the print press is on its knees.

Schilling is nevertheless unmoved by press claims that privacy law is endangering freedom of expression. He says he is privy to plenty of private information in his job and he has not once come across a case where serious journalism has been impeded. He also believes that the behaviour of the press has played its own part in the development of privacy law. "There is a lot of talk of the symptoms, but not of the cause of all of these superinjunctions," he says. "The press' degree of responsibility and accountability is at an all-time low."

Rather than fight over super injunctions, Schilling would prefer to see the press use the opportunity to turn over a new leaf. "Privacy law is important," he argues, "as it should effect a redistribution of limited newspaper resources away from kiss-and-tell stories and towards serious investigative journalism, where it is most needed."

The prospect sounds idealistic. At the same time, it is impossible to imagine Private Eye or any of the red tops agreeing with him. Kiss-and-be-quiet just doesn't have the same ring to it.