If we were concerned with American rather than European law, we might describe Mr Justice Eady's judgment in Mosley v Newsgroup Newspapers as the English equivalent of the Supreme Court case of Griswold v Connecticut in 1965. Both dealt with sex, both dealt with privacy. Both can be regarded as extensions of what the privacy law had been thought to be before the cases were tried.

The facts of Griswold were that the state of Connecticut had an ancient and virtually obsolete statute making it criminal to use contraceptives, inside or outside marriage. By 1965, after the invention of the contraceptive Pill, it had become an absurdity. Indeed the statute had never been enforced.

Some professors at Yale Law School decided to get rid of it and make a propaganda point, by taking it to the Supreme Court. The majority opinion was drafted by the influential liberal Justice William O. Douglas. He discovered a new basis for argument, the doctrine of a fundamental right of privacy, that could not be found in the US Constitution: “We deal with the right of privacy older than the Bill of Rights - older than our political parties, older than our school system... would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.”

Douglas tended to let his judgments go over the top, at least verbally. He derived this right of privacy from the US Bill of Rights, where it is not to be found, just as the more cautious judge, Mr Justice Eady, legitimately derives his from the European Convention on Human Rights and Fundamental Freedoms.

Even Mr Justice Eady uses some quite romantic language. He says that there exists an enforceable duty of confidence, “because the law is concerned to prevent the violation of a citizen's autonomy, dignity and self-esteem”.

The Griswold ruling lacked the clarity or the logic necessary to make good law. However, it suited the taste of an activist Supreme Court, and provided a new right of privacy parallel, though subordinate, to the right of free speech in the First Amendment. In US law the First Amendment still has considerable force. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the government for a redress of grievances.”

That remains good law. However, the European convention did not put the rights that it created in any particular order - they have to jostle against each other in the light of the circumstances of individual cases. To a significant degree this interplay of rights depends on the discretion of judges, and English judges have not always been sympathetic to the exercise of press freedom.

In his judgment, Mr Justice Eady points out that there is a potential conflict between Articles 8 and 10 of the European convention. This is the Council of Europe convention that was incorporated into British law in 1998. Article 8 states that “everyone has the right to respect for his private and family life, his home and his correspondence”. Article 10 states that “everyone has the right to freedom of expression. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” There are obvious defects in these clauses that do not arise from the terms in which they were drafted.

Our privacy is being invaded by the world's security services in every second of every day, as a routine matter. Vast quantities of information are collected by commercial enterprises such as Google or Tesco. Against these invasions of our privacy we have little or no protection. However, the Mosley case was not concerned with these very important invasions of privacy but with the individual actions of the News of the World, which is owned by News International, the parent company of The Times.

It was, in my view, a pity that Max Mosley did not try to vindicate his character by bringing an action for defamation, rather than one for breach of confidence. In my view, he destroyed his own reputation by his actions. He argued that he was entitled to a duty of confidence from the women that he hired for sadomasochistic charades. Under modern law, he is not entitled to confidentiality from any solicitor or accountant who might advise him on a tax savings scheme that might not be approved by the Revenue. It seems absurd to argue that he should nevertheless be entitled to a higher degree of confidentiality from the women that he hired to play dominatrix roles in sadomasochistic ventures.

Judges are reluctant to accept that newspapers are one of the few remaining safeguards. Journalists more often than lawyers are the people who investigate the more disreputable areas of life. We have recently seen in some very painful cases involving the social services and the family courts that there is far too little exposure of serious injustices in cases that the press is not free to report. Any reduction of the ability of the press to investigate and to publish is likely to have serious consequences against the general welfare of society.

In his judgment, Mr Justice Eady followed a line that many English judges might also have followed. He was more worried about a breach of confidentiality than by the proceedings that were disclosed. He virtually abolished the “defence of inequity” that used to give some protection to the disclosure of scandalous but not criminal events. Mr Mosley's employment of prostitutes to indulge his masochistic fantasies was not criminal, but it was not reputable. It did not deserve the protection of the law.

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