Next Monday several media groups will seek permission to join an author in her appeal against a High Court ruling that has the potential to inhibit press freedom by introducing a quasi privacy law. Editors and media lawyers believe that if the ruling stands it could prevent the publication of information about public figures, whether they be politicians or celebrities, and whether the information is for the public good or merely interesting to the public. Even pictures of personalities in public places could be legally prohibited while kiss-and-tell stories of any kind in print (including books and magazines) and on television would be outlawed. Unauthorised biographies of living people would be unlikely to appear.
As Maurice Chittenden reports in today's Sunday Times , the specific case at issue involves the Canadian folk singer, Loreena McKennitt. She originally went to court to stop a former friend, Niema Ash, from publishing a book entitled Travels With Loreena McKennitt: My Life as a Friend. The singer objected to a number of detailed revelations of an apparently inconsequential nature.
It would be an understatement to say that that Mr Justice Eady's decision for McKennitt came as a surprise. He awarded her £5,000 damages and an injunction preventing Ash from publishing certain passages in her book. The bombshell in his judgment was his overt reliance on a controversial European Court of Human Rights ruling in 2004 that pictures taken in public of Princess Caroline of Monaco breached her right to privacy. In weighing the balance between the right to freedom of expression and the right to a private life, Eady argued unerringly in favour of the latter. In his view, information about an affair between two people could be protected even if one of them wished to reveal it and, moreover, the fact that information was already in the public domain did not always mean it could be republished. That was a breathtaking judgment, as I remarked in January in the Daily Telegraph when warning about its draconian implications for the tabloid press.
Ash has lodged an appeal and the media organisations - including the BBC, Times Newspapers and the Press Association - are seeking to join in the action when it is heard later this year. Meanwhile, Ash's book is in abeyance. It is listed as unavailable on Amazon.com, but some excerpts can be read on Ash's own website.
I regard both the Eady judgment and the Princess Caroline ruling as maverick judgments but I understand why they occurred. There is a delicate balance to be struck between articles 8 (right to private and family life) and 10 (right to freedom of expression), and it is unsurprising that judges asked to make black-and-white decisions about specific disputes will occasionally make mistakes. Then again, these are very bad mistakes indeed. Though I have the highest respect for Eady, I think he got this particular case hopelessly wrong.
There are many revelatory stories, whether in newspapers or in books, that lots of people find distasteful. They are intrusive and they should not be published. Ensuring that such material is prohibited requires judges to make clear-cut rules through the development of precedent in actions about stories that intrude more deeply than Ash, and about pictures that invade privacy more obviously than those the princess complained about. Common sense also surely dictates that if information is already in the public domain (and it is accurate), then it is foolish to ban its repetition.
