After Sunday’s privacy case against The Mail, the Appeal Court ruling in favor of The Duchess in favour of The Duchess of Sussex has led to ministers considering amending the law in order to preserve free speech.
Downing Street said publicly yesterday that ministers would ‘study closely’ a ruling which upheld the High Court’s decision that Meghan had a ‘reasonable expectation of privacy’ over a letter written to her estranged father Thomas Markle.
Senior Government officials told The Daily Mail, however, that it was necessary to amend the law in order to balance the rights of free speech and privacy.
Experts in legal analysis have indicated that the case may have chilling effects on freedom of speech.
A Cabinet minister told the Mail judges in the case appeared to have gone far beyond what Parliament intended when including a right to a private life in the Human Rights Act – and given too little weight to the right to freedom of expression, which is also incorporated in law.
Downing Street said publicly yesterday that ministers would ‘study closely’ a ruling which upheld the High Court’s decision that Meghan had a ‘reasonable expectation of privacy’ over a letter written to her estranged father Thomas Markle
‘The judges have created a privacy law which Parliament never voted for,’ the source said. ‘MPs never agreed a privacy law because they knew it would be used by the rich and famous to cover up their misdeeds.
‘The balance between privacy and free speech is clearly wrong. This is the law. It needs to be changed. We feel like judges have invented law. It draws on laws passed by Parliament but it is not what Parliament ever intended and we should correct that.’
Downing Street also suggested that action was possible. Asked whether the PM believed judges were getting the balance right between privacy and free speech, a No 10 spokesman told reporters: ‘We will study the implications of the judgment carefully.
‘You have heard the Prime Minister say before that a free Press is one of the cornerstones of any democracy, and this Government recognises the vital role that newspapers and the media play in holding people to account and shining a light on the issues which matter.’
The spokesman said he could not get into the ‘hypotheticals’ about what action the Government might take.
Whitehall sources said that ministers could consider altering the law to ensure free speech following the ruling.
‘The feeling of a lot of people in Government is that something has gone too far,’ the source said. ‘Individual judges are making massive pieces of case law without reference to Parliament, and that is worrying.
‘There is a concern about where this leaves free speech and the freedom of the Press. No one wants a situation like the one in the US where justice is entirely based on the size of your wallet rather than the merits of your case.’
One source said reforms could be introduced as part of Justice Secretary Dominic Raab’s review of the Human Rights Act, which is due to report in the coming weeks. One source said that measures might be included in the Online Harms Bill which will be presented to Parliament next week.
Damian Green, Tory MP and member of the Commons culture committee, said: ‘If we want privacy laws, they need to go through Parliament and not be decided on a case-by-case basis in the courts.’
The interventions came after judges threw out an appeal by The Mail on Sunday, the Daily Mail’s sister paper. They ruled that ‘an unfortunate lapse of memory’ that led to the duchess apologising to the court did not affect the case.
Damian Green, Tory MP and member of the Commons culture committee, said: ‘If we want privacy laws, they need to go through Parliament and not be decided on a case-by-case basis in the courts’
The Mail on Sunday had sought to take the case to trial after the High Court issued a summary judgment in Meghan’s favour. However, the Appeal Court upheld this ruling. It means that there have been no opportunities to examine witnesses and testify before the court. However, the newspaper supported its rights to publish extracts from correspondence.
The progress and outcome of the case would not be affected by any change to the law. However, it may prevent wealthy or powerful people from using it to block Press scrutiny.
In a lengthy statement Meghan said she hoped the ‘precedent-setting’ judgment would lead to a ‘reshape’ of the ‘tabloid industry’.
But Matthew Dando, a media lawyer at Wiggin LLP, said new legislation was the ‘only alternative’ because judges were now favouring privacy over freedom of expression.