Is prince's victory a blow for the media?

By Dominic Ponsford

Prince Charles’s partial legal victory against The Mail on Sunday over publication of his private journals appears to be a success for the individual’s right to privacy versus the media’s right to freedom of expression.

Mr Justice Blackburne ruled that the MoS was wrong to publish extracts of a journal written by Prince Charles in July 1997 on his return from the Hong Kong hand-over, and said that it breached both his copyright and his confidentiality.

However, the judge refused a summary application to ban publication of seven of Prince Charles’s other journals obtained by the MoS, meaning that case may go to trial.

A separate hearing will decide how much damages the MoS must pay the prince.

The judge said he weighed up competing sections of the Human Rights Act 1998; namely Section 8 (privacy) versus Section 10 (freedom of expression).

He said: "The defendant’s right to freedom of expression enshrined in Article 10 is obviously extremely important. The vital role of the press in modern democracy is not in doubt.

"But Article 10 is explicit that the exercise of the right to freedom of expression carries responsibilities, one of which is to prevent the disclosure of information received in confidence."

Media lawyer Sarah Webb, from Russell, Jones and Walker, said: "Charles said his confidentiality flowed from the Human Rights Act. This is a further development of what happened in respect of Naomi Campbell versus the Daily Mirror concerning the right to privacy and confidentiality."

The MoS argued that the journals were not "intimate personal information", but information relating to the prince’s public life, and so in the public interest.

It also said that, according to its unnamed source, they were not treated as confidential in the prince’s office.

But Mr Justice Blackburne said: "There is nothing in the evidence… to say that the purpose of the journals was to influence political opinions."

He said the journals were clearly marked "private and confidential" and even at the upper estimate of the number of recipients (75) this was still a small enough number for them to remain confidential.

He added that The Mail on Sunday’s public interest justification failed because: "There was no question of exposure of any kind of wrongdoing or hypocrisy."

Regarding the other seven journals, he said he had "every reason for concluding" that Charles has "a reasonable expectation of privacy in regard to their contents".

But he added that he was not willing to make a summary decision banning their publication without knowing their contents, so he allowed that decision to go ahead to a trial.

The judge said: "It would indeed be remarkable if, in the interests of press freedom, the claimant cannot enjoy confidentiality in the musings and reflections which ‘as a bit of fun’, to quote Mr [Mark] Bolland, the claimant chose to commit to paper in the course of his return flight to this country."

The Mail on Sunday has indicated that it will appeal against the ruling over the Hong Kong journal and press on to trial over the other journals.

In a statement the paper said: "It cannot be legitimate for the prince to claim the right to engage in political controversy and at the same time deny the public the right to know that he is doing so. These issues will be heard not only in our appeal over the Hong Kong journal, but also in the trial relating to the other seven journals which the judge has agreed we should retain."

According to Rod Christie-Miller, partner at media law specialists Schillings, Charles is likely to win at trial in the case of the remaining seven documents — but it could mean him taking the stand.

He said: "Given that the burden of proof for the prince in a full trial will be on the balance of probabilities — and therefore significantly lower than the stiff summary judgment test — he should succeed.

"If he wants to see this through to the end however, it could mean he has to follow the Princess Royal in 2002, Bertie, Prince of Wales, in the late 19th century and Charles I in 1649, into the witness box and face the possibility of being cross-examined in what is still, technically, his mother’s court."

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