Major decision edges towards privacy law

The UK is edging towards having an effective privacy law following a landmark ruling in the Appeals Court. Folk singer Loreena McKennitt has successfully thwarted an appeal from the author of a book that McKennitt said violated her privacy rights.

There is no specific privacy law in the UK but increasingly the application of the European Convention on Human Rights (ECHR) is creating an effective privacy law. It was McKennitt's rights under the ECHR that were upheld by the Appeals Court.

Article 8 of the EHCR says that a person has a right to a private and family life, while Article 10 says that a person has a right to freedom of expression. The two rights were in conflict in this case since McKennitt's right to privacy clashed with book author Niema Ash's right to freedom of expression.

Having originally sought and been denied an injunction against the publishing of Travels with Loreena McKennitt: My Life as a Friend, McKennitt eventually began an attempt to block the publication of particular passages.

"The nub of Ms McKennitt's claim is that a substantial part of the book reveals personal and private detail about her which she is entitled to keep private," said Lord Justice Buxton in his ruling. "That claim is brought against the background that Ms McKennitt is unusual amongst world-wide stars in the entertainment business, in that she very carefully guards her personal privacy."

Buxton laid out the complicated legal landscape. "There is no English domestic law tort of invasion of privacy. Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be 'shoehorned'."

In order to make a judgment based on 'breach of confidence' it is essential to look as hard at the relationship between the parties as at the information passed on, said Buxton.

"The Judge accordingly approached, and correctly approached, his consideration of the passages complained of against the background of a pre-existing relationship of confidence, known to be such by Ms Ash, while at the same time not assuming that that covered everything that happened between the two women with the cloak of confidence," said Buxton.

The passages in dispute concerned McKennitt's personal and sexual relationships; her feelings after her fiancé died in a boating accident; information on her health and diet; information on her emotional vulnerability, and details of a property dispute.

Buxton backed the earlier decision of Justice Eady preventing the publication of certain of those passages. "Item 5 deals with Ms McKennitt's relationship with her fiancé and the outcome of his death in 1998. The Judge described the passages in the book as 'remarkably intrusive and insensitive'. Having had the benefit, if that is the right word, of reading the whole of the book's treatment of this subject, I would think that the Judge's characterisation was if anything restrained," said Buxton.

The information was gathered by Ash from many conversations the two had when they were friends, even staying together for periods of time. Ash's lawyers argued that she was recounting experiences which belonged to her as much as to McKennitt, that she had a right to recount her own experiences.

Buxton agreed with Eady, though, that the purpose of the book was to give information related to McKennitt, and that the fact that it related to Ash was immaterial.

"The editors of the tabloids will not be happy," said Kim Walker, a media law expert at Pinsent Masons, the law firm behind OUT-LAW. "The Court has made it clear that people in the public eye will be protected when they 'had a reasonable expectation of privacy', unless there is a serious public interest in the material being made public."

"The one comfort for the red tops and publishers of unauthorised biographies is that McKennitt was a celebrity who guarded her privacy carefully and it is unlikely that protection would be afforded to those on the 'professional celebrity' circuit who go out of their way to ensure they appear in the pages of Closer and Heat, as they might find it difficult to claim a 'reasonable expectation of privacy'," said Walker.