Privacy and Meghan Markle

Until the judgement last week by the Court of Appeal, I had rather lost track of the case brought by Meghan against Associated Newspapers, the publishers of the Daily Mail. It all related to a letter which she had written to her father asking him, in effect, to stop cashing in on her new-found fame and fortune. With the father’s encouragement, the letter was duly published, almost in full, by the Daily Mail - presumably accompanied by a payment to the impecunious father. The normal royal response of doing nothing was abandoned by the rather more litigation-minded American Duchess. She sued under two headings.
Firstly, copyright infringement. She said that, as she had written it, she was the copyright owner and she had not given permission for it to be reproduced. The Daily Mail said in response that the legislation permits them to reproduce extracts for the purpose of reporting current events. That though is subject to a requirement of ‘fair dealing’ – for example, is the amount of the work reproduced reasonable and appropriate? Usually only a part may be used. The court found that publishing almost all of the 5 page letter as a series of splashes over a 3 day period was certainly not fair dealing.
Secondly, and more controversially, she claimed a right to expect that her letter would be treated as a private matter. It was sent to her father privately and it was he who revealed its contents. In the UK we are in an odd position. Unlike most of Europe and Canada and, I think some states in America, we didn’t have a law entitling people to privacy unless there was a contract in place which imposed confidentiality – usually only the case in connection with business arrangements. We did though start to accept the concept of privacy when the European Court of Human Rights extended the scope of the “right to privacy” under Article 8 of the Convention. The Convention was originally designed, in the aftermath of the Second World War, to give protection to the citizen against unacceptable conduct by the State – so-called ‘vertical rights’. Exceptionally and controversially, however, Article 8 has been held to create ‘horizontal rights’. These are directly enforceable rights and duties between persons, and not just rights against the State. Our Human Rights Act, enacted by Parliament in 1998, requires the UK judiciary to take account of the Strasbourg case law, and so that is what our Courts have done. The right to privacy is not though absolute. It is a balancing exercise between the right to privacy and, in this instance, the freedom of the Press. The Judges decided, again largely based on the amount of material from the letter which was published, that the Press had gone overboard and so a public interest defence could not be maintained.
There is a lot more detail to the case – the judgement of the Court of Appeal runs to 31 pages, but, frankly, I have a life to live! What is interesting to me, however, is the reaction, not just of the press, but of the government in response to what I can only assume is pressure from the press.

The Daily Mail is deciding whether or not to appeal to the Supremes and the government is deciding whether or not to change the law. The initial reaction by Boris was that press freedom had to be maintained above all. This is surprising, as I would expect that politicians, particularly those in government, would want increased privacy. It may however may be relevant that the number of ‘private meetings’ held (and so not minuted) by cabinet ministers with the three leading press moguls – Murdoch, Rothermere and the Barclay Brothers - exceeds those of, for example, those with the oil companies.

The Times’ editorial on Monday toed the government line in its criticism of the Court’s judgement, saying that things had gone much too far in the direction of protecting privacy and that we are in the realm of Judge-made law. Of course judge-made law is hardly a novelty. The whole of the Common Law from before the Norman conquest is judge-made and, in other circumstances, nationalists can be heard praising our Common Law as one of our wonderful gifts to the world. Clearly, Parliament can pass legislation altering the Common Law as well as creating entirely new laws. What it cannot do is have it both ways.

But the judges are not in fact making the law in this case, They are interpreting a statute passed by Parliament in the normal way. In the case of the Human Rights Act, there is no ambiguity in the law which would encourage or permit the judges to ‘interpret’ the law in ways not already considered by Parliament: Parliament clearly did incorporate the right to a private life from the European Convention (which the UK was obliged to follow in any event) into domestic law; our courts are now balancing that right against the other rights granted by the Convention, including that of press freedom.

The ‘horizontal’ nature of the obligation under Article 8 was already well-established prior to 1998. So then, they are not creating anything new, only interpreting what Parliament enacted. If Parliament thinks it got it wrong, then it is up to Parliament to amend the Human Rights Act, not criticise the Judges.

But even if we do amend the Act, the European Convention obligations we signed up to will still continue in force. Although derogation from the Convention is permitted by Article 15 in time of emergency (e.g. war), if we were now to alter our Human Rights Act in a way which was inconsistent with the European Convention, then we would simply be in breach. What would that say to other signatories with an even more fragile wish to be bound by its provisions? And for what? So that we can pile in on celebs, something which is obviously necessary for the continued profitability of much of the press, hence their crocodile tears about limits on press freedom.

But it now goes further. Judicial review and the Courts’ powers are after all, it seems, to be subject to more restrictions. The Courts bill now before Parliament only tinkers at the edges with judicial review, because even the inquiry into its working by Johnson allies found nothing significantly wrong with the existing system. This bill, though will now be followed by what Johnson really wants – revenge on the judges. This is mainly because they found against him in respect of the unlawful proroguing of parliament, but also because they found in favour of Gina Miller’s request that Mrs May get Parliament’s consent before giving notice to the EU that we wanted to leave.

The latest plan to take back control from the Courts is actually copied from a process which was in force in apartheid era South Africa. Each year there will be a list of judgements which the government doesn’t like. They will then somehow reverse them retrospectively. They have not told us how. It could of course be done by Act of Parliament, with all the delay and opportunity for debate and amendment which that entails. So probably it will be done by secondary legislation. An enabling Act will allow statutory instruments to be tabled telling us which judgements should be expunged and, unless MPs decide to oppose them, then that will be the law. Even if some do decide to oppose it, there will be no opportunity for amendment – the vote will be for its adoption or not - and with an 80 strong majority, then the government will almost certainly get its way.

What the consequences would be for the original litigants is completely unclear. Will orders made by the court on the basis of their judgement be reversed? Will costs instead be awarded to the party which originally lost? How will it all be untangled? How will we explain that the Rule of Law has not been ripped up? I had hoped that the government had seen sense over their fight with the judiciary. Obviously I was mistaken. My only hope now is that when I write to my MP about all this that he will reply saying – “I’ve realised the error of my ways. I shall do as you suggest and vote against this terrible proposal.” I suspect that flying pigs are currently grounded because of the dreadful storms.

Paul Buckingham

7 December 2021

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