Right to Privacy Advances in the UK with Resolution of McKennitt Case
On March 30, 2007, the House of Lords denied an author permission to appeal a ban on her book, the publication of which was stopped on the grounds that it violated the privacy of the main subject.. The publication of “Travels With Loreena McKennitt: My Life As A Friend”, was halted when Loreena McKennitt, a Canadian songwriter and singer known for being particularly protective of her personal privacy, won an injunction, blocking the publication of certain passages in the book on the grounds that the publication of the passages would violate her right to a private life under the European Convention on Human Rights (“ECHR”).
Ms Kennitt was successful in cases brought in the High Court and in the Court of Appeal. Thereafter, Niema Ash, the author of Travels with Loreena, sought permission to appeal the injunction to the House of Lords. In a step hailed by privacy advocates, the House of Lords denied Ash permission to appeal, bringing the end of to a case that marks further evolution on the development of a right to privacy under English law.
Prior to the writing of the book and the resulting dispute, McKennitt and author Ash had been friends and spent a lot of time together. During this time, Ash, apparently, was gathering information for her book, which ultimately exposed a lot of details about conversations that Ash and McKennitt had shared.. McKennitt originally sought an injunction against the publication of the entire book but was unsuccessful. She then narrowed her challenge to particular portions of the book. The passages of Ash’s book that McKennett had challenged contained details about very personal aspects of her life, including her personal relationships, the death of her fiancé, accounts of her emotional vulnerability and a discussion of a property dispute in which she was involved. McKennitt argued that Ash’s book revealed private details about intimate personal matters that she was entitled to keep private.
Ash, on the other hand, contended, that, as she spent a lot of time with McKennitt, the accounts that she had proposed including in her book were as much about her own experiences as they were those of McKennitt. She also pointed to the ECHR, emphasizing the right to freedom of expression that was guaranteed to her by Article 10 of the ECHR.
In ruling in favor of McKennitt, the Court of Appeals maintained that, as the focus of the book was McKennitt and not Ash, the rights of McKennitt must prevail over those of Ash. In denying Ash the right to appeal, the House of Lords appears to have been saying that the Court of Appeals got it right.
Analysts have been watching the case closely, suggesting that it might be a milestone in the development of the right to privacy under English law. The present case was one a few recent trials that have tested the bonds and limits of the concept of a privacy law of this nature, under English law. Traditionally, English law has not recognized a cause of action for breach of privacy. As such, in recent years, famous persons seeking to protect their private lives have sought legal redress by effectively extending the existing tort of breach of confidentiality to accommodate the principle the right to private life as exists in Article 8 of the ECHR. In bringing her case, McKennitt also relied upon this Article.
Other public figures have enjoyed similar successes in reliance upon Article 8 of the ECHR. Prince Charles, for instance, won a case recently preventing the publication of notes he sent to friends relating to the handing over of Hong Kong to China. Also, Michael Douglas and wife Catherine Zeta Jones are presently involved in another case that, when resolved should lead to further clarification of the right to privacy.
It will be interesting to observe how the right to privacy develops hereafter. Privacy advocates are contending that the McKennitt case will have strong implications and are cautioning tabloid editors to take note that courts will protect public figures when they have a reasonable expectation of privacy - just as long as there is not a serious public interest in the content at issue being made public. Others have taken a more restrained approach, contended that this is more of a special case because McKennitt has been especially protective of her own privacy rights and the information that was made public was a result of what she thought were private conversations with whom she thought was a friend. Other celebrities who voluntarily place themselves out in the public eye may be less able to claim that they had a reasonable expectation of privacy, when for example, a reporter writes about their behaviors when out in public venues.
