This win is precedent setting,’ proclaimed Meghan Markle, immediately after last week’s Court of Appeal decision against The Mail on Sunday – even though the court took pains to explain that it was not setting a precedent at all.
The Appeal Court judges ruled that this newspaper’s decision to publish half of a letter from Meghan to her father had indeed been a breach of her privacy, as she claimed. Yet her ‘win’ was simply an application of laws that had been ‘developed’ – in fact, created – by judges over the past 15 years. And this is significant.
This case has drawn attention to a dangerous increase in judge-made restrictions on free speech that increasingly prevent our society from holding the rich and powerful to account.
Those laws have troubling implications for freedom of expression, and in this case they were applied after a ‘summary judgment’, which is to say without a proper trial where the facts and evidence would be closely scrutinised. Now there are loud demands that Parliament should intervene to strengthen our protections for free speech.
Our first law to protect privacy came in 1360, before the invention of printing, to punish people who ‘listen under walls and windows, or in the eaves of a house… to frame slanderous and malicious tales’.
Such eavesdroppers were deemed a common nuisance, put in the stocks and pelted with rotten eggs.
Yet her ‘win’ was simply an application of laws that had been ‘developed’ – in fact, created – by judges over the past 15 years. And this is significant, writes Geoffrey Robertson
A right to privacy did not exist in the common law of England until 1998, however, when the Blair government adopted into British law the European Convention on Human Rights.
Article 8 (framed after Second World War to stop raids of the kind carried out by the Gestapo) declared that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, and this is what Meghan invoked in her claim against The Mail on Sunday.
Yet Article 10 of the same Convention proclaimed that ‘everyone has the right to freedom of expression’. Suppose these two rights were to clash?
At the time it was said that the courts should apply a presumption in favour of free speech – that the two rights were not to be weighed against each other – and this assuaged the media’s concerns.
By 2005, this entirely sensible approach was rejected by the courts, however, in favour of giving ‘privacy’ an equal value to freedom of expression.
Judges were required to perform a balancing act, ‘weighing’ – inevitably, according to their own values – the importance of each right as it applied to the facts of the case.
And so the rich and famous were handed a new legal weapon which was relentlessly taken up by ‘reputation’ lawyers. The problem of course is that these two rights cannot sensibly be ‘balanced’ at all
And so the rich and famous were handed a new legal weapon which was relentlessly taken up by ‘reputation’ lawyers. The problem of course is that these two rights cannot sensibly be ‘balanced’ at all.
Judges, for example, generally exclude any ‘right’ to amusement or entertainment, or even the ‘right’ to enjoy the hypocrisy of public figures. Instead, they solemnly intone that ‘what is of public interest is not to be confused with what interests the public’ – a mantra that usually enables them to rule against popular newspapers.
This newly developed law has had serious impact on public interest reporting. There has been a recent upsurge in threats against publishers and human rights organisations from lawyers in London catering for foreign individuals who fear allegations of corruption or human rights violations.
Truth is no defence to a privacy claim and the cost of fighting an action is a serious deterrent to exercising the ‘right’ of free speech. Moreover, the right to privacy is not merely subjective, but uncertain and unpredictable.
For example the Court of Appeal said that The Mail on Sunday could potentially have avoided liability by publishing only one paragraph of the letter from Meghan’s father. But which paragraph? And any selection would open the Editor to the charge of ‘cherry picking’, and where documents are concerned it may be important to see them fully in context.
For example the Court of Appeal said that The Mail on Sunday could potentially have avoided liability by publishing only one paragraph of the letter from Meghan’s father. Pictured: Meghan and her father
Then there is the question of whether the letter was truly private in the first place. As there was no trial, the evidence was never tested. This approach puts the judge in the Editor’s chair – a position that in libel actions judges have always declined to occupy for very good reasons.
Meghan’s crusade against the media would have little traction in her preferred state of residence, where the First Amendment to the US Constitution (passed because of hostility to British sedition laws) prohibits the making of any law that infringes on media freedom.
There are privacy laws in the United States, but to avoid violating the First Amendment they concentrate on gross invasions without newsworthy interest, such as publication of medical records.
Their big debate over privacy will come in a different context next year, when a Supreme Court packed with Trump appointees is likely to overturn Roe v Wade – the right of women to have abortions, which is based on their right to privacy.
Their big debate over privacy will come in a different context next year, when a Supreme Court packed with Trump appointees is likely to overturn Roe v Wade – the right of women to have abortions, which is based on their right to privacy. Pictured: A protest against the Supreme Court Roe v Wade hearing
Meghan might more usefully defend that right in the US rather than continue her courtroom crusade against the media in the UK.
Should Parliament intervene and define privacy in a statute?
That solution is appealing, but it overlooks the difficulty of setting out the myriad factual situations that could give rise to a claim.
And reformers should be careful of what they wish for: MPs are self-interested. There is no class that more ardently desires a law to cover up their peccadilloes.
Any laws they draft might well stop publication of photographs of a future Matt Hancock breaching his own rules by embracing a lover ‘in the privacy of his own office’.
The best way forward – which could be taken either by Parliament or the Supreme Court – would be to return to the position such that the right to free speech set out in Article 10 of the Convention should have a presumption in its favour over right to privacy laid down in Article 8.
Finding a balance between two incomparable rights is unworkable and subjective.
Instead, we should focus on the real question of whether the defendant crossed the red line: that of inhumanity.
This does not mean that we should go back to a time when privacy rights did not exist. They are a necessary protection for citizens against cruelty and unfair media demonisation. But they must be confined to cases where victims deserve compensation.
The growth in privacy claims is just one aspect of laws that increasingly chill investigative journalism, invoked by a growing breed of lawyers who promise the rich and famous to restore their often over-hyped reputations.
Even national newspapers struggle to pay the exorbitant legal costs of mounting a defence, let alone small publishers and human rights organisations which strive to expose abuses and corruption abroad but are threatened with bankruptcy by the prospect of legal reprisals in London.
Increasingly, it may be said that Britain is not a country which has free speech – it has expensive speech.