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.
Appeal Court judges found that Meghan’s claim of privacy breached by this newspaper publishing half of the letter she wrote to her father in the paper. Yet her ‘win’ was simply an application of laws that had been ‘developed’ – in fact, created – by judges over the past 15 years. It is this that matters.
The case highlighted a disturbing increase in restrictions placed by judges on freedom of speech, which is threatening our ability to hold the powerful and wealthy accountable.
They have grave implications for freedom expression. However, the’summary ruling’ was made in this case. This means they were not applied to actual trial, where all evidence and facts are thoroughly examined. It is now being demanded that Parliament intervenes to improve our rights for free expression.
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’.
These eavesdroppers were considered a nuisance and put into the stock. They then got pelted with rotten egg.
Yet her ‘win’ was simply an application of laws that had been ‘developed’ – in fact, created – by judges over the past 15 years. Geoffrey Robertson writes that this is important.
The common law in England did not provide for privacy until 1998. But, after the Blair government adopted the European Convention on Human Rights, there was a right to privacy.
Article 8, which was created after the Second World War in order to prevent raids like those carried out by Gestapo, stated that “everyone has right to respect his private and familial life, his house and his correspondence”. This is what Meghan used to claim against The Mail on Saturday.
But Article 10 in the Convention also stated that everyone has the right of freedom of expression. These two rights could be in conflict.
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.
This sensible approach was rejected in 2005 by the courts. However, they favored giving privacy equal importance to freedom of speech.
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.
So the wealthy and famous got a new legal tool that was constantly seized upon by “reputation” lawyers. Problem is, these rights are not able to be balanced.
The wealthy and well-known were given a new tool which was aggressively used by lawyers who aimed to improve their reputations. Problem is, these rights are not able to be properly ‘balanced.
The judges, for instance, usually exclude the “right” to entertain themselves or to take in public hypocrisy. 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.
Public interest reporting has been greatly affected by this newly created law. Lawyers in London who represent foreign nationals and fear corruption allegations or other human rights violations have made threats to publishers and human rights organizations.
The truth is not a defense to privacy claims and fighting an action can be a significant deterrent for exercising your ‘right to free speech’. Privacy is subjective and uncertain, so it cannot be ruled out.
The Court of Appeal stated that The Mail on Sunday might have been able to avoid liability by only publishing one paragraph of Meghan’s letter. What paragraph is it? Any selection could lead to the editor being accused of cherry picking. It is important that documents be fully understood in context.
The Court of Appeal stated that The Mail on Sunday might have been able to escape liability by only publishing one paragraph of Meghan’s father’s letter. Pictured: Meghan with her father
Next, there’s the issue of privacy. Since there was no trial the evidence wasn’t 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 anti-media crusade would be ineffective in her state of residence. The First Amendment to US Constitution, passed because of hostility towards British sedition laws, prohibits any law which infringes media freedom.
Although privacy laws exist in the United States of America, they focus on violations that do not violate the First Amendment.
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 is a protest at the Supreme Court Roe V Wade hearing
Meghan may be better off defending this right in the USA than continuing her legal battle against media in the UK.
Does Parliament have to intervene?
This solution may be appealing but overlooks the difficulties of describing all the facts that might lead to a claim.
Reformers need to be cautious about what they want: MPs have a self-interest. A law covering up their mischiefs is what every class desires more than any other.
They might not publish photographs of Matt Hancock, the future husband and father of one of their children, if they make laws that prohibit them from publishing photos of him with a lover “in the privacy of his 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.
It is impossible to find a compromise between these two distinct rights.
We should instead focus our attention on whether or not the defendant has crossed the line of human inhumanity.
It does not necessarily mean that privacy rights should be restored to the past. They provide citizens with protection against cruel treatment and media demonization. They should be used only in cases of victims who are entitled to compensation.
Privacy claims are just one of the many laws that have been used to chill investigative journalism. They were invoked by an increasing number of lawyers, who claim they will restore the fames of the wealthy and famous.
Newspapers of all sizes struggle to cover the legal expenses of defense. This is not just for national publications.
Increasingly, it may be said that Britain is not a country which has free speech – it has expensive speech.