Thanks to Article 8, the tabloids have not only lost their battle to describe what people are like in bed, but even to report whose bed they are in — unless, like the footballer Rio Ferdinand, they can be shown to be hypocrites who do not have school-age children likely to be upset by learning of their infidelities. The impact on children of knowledge of a father's sexually incontinent behaviour (allied to an ingrained dislike of tabloid sensationalism) now weighs in the judicial mind more heavily than the rights of a kisser to tell or the public to know. The most recent Court of Appeal case shows that we have now reached a stage where judges will ban newspapers from reporting adultery, even when they are merely recording the obvious. A prominent figure in the "entertainment business" was granted a permanent injunction against revelation of a sexual relationship, even though it was well-known within the industry. The court was impressed by the argument that his children would be upset — an argument always likely to move kind-hearted judges more than worldly-wise jurors, who may doubt whether children really run home crying from school on learning that their father is having an affair with a topless model.

Whether these judge-made developments in the law of privacy are satisfactory is debatable: the celebrities are usually male, and the free-speech rights of women they may have treated badly are overridden — or ignored (judges have ruled solemnly but illogically that a woman describing her relationship with a celebrity is telling his story, not hers). But the simple fact is that the courts now offer an effective remedy for breach of privacy by issuing pre-publication injunctions and awarding substantial damages (Max Mosley was awarded £60,000), and the PCC, which offers no injunctions and no compensation, cannot compete.  

The Leveson inquiry will doubtless recommend that Parliament legislate for a new civil wrong, enabling the courts to award damages for privacy invasion under a modern statute rather than use their loosely-defined powers under Article 8. The scope of defences will be important to the media (and not just to the press): obvious justifications should include the exposure of crime or serious impropriety, the protection of public health and safety, or revelations of hypocrisy. Under the latter test, Max Mosley (whose "Nazi sex orgy" turned out to be merely an old-fashioned British sex orgy) might still have won. But whether he had a reasonable expectation of privacy over his multiple spankings should surely have been decided by a jury and not by a judge sitting alone. Under privacy law as it has developed, there is no place for juries, and only a statute could provide the media with a right to jury trial.

Does the press want trial by jury for privacy cases, or trial by Mr Justice Eady? The new Defamation Bill severely limits trial by jury for libel, and newspaper groups cannot work out whether they are in favour. Because they abhor the idea of privacy law, they have shown little interest in its formulation, other than to complain about superinjunctions.