The latest court victory over the Mail on Sunday from Meghan, the Duchess of Sussex, has prompted an outcry from free press advocates who feel the law is shifting to “favour privacy over freedom of expression”.
The ruling is said to have attracted Government attention, with a Cabinet minister suggesting that a human rights law overhaul is needed.
But academics spoken to by Press Gazette suggest this is an overreaction, saying the case is a “red herring” and there has been no “drift” towards privacy.
Court of Appeal judges ruled last week that the Mail on Sunday was wrong to publish half the contents of a letter from Meghan to her father, Thomas, on both privacy and copyright grounds. They found also that a previous judge was right not to let the case go to a full trial.
However, the judges said it may have been proportionate if smaller amounts were quoted to support the newspaper’s claim that it was rebutting allegations made about Mr Markle by Meghan’s friends in People magazine.
The case has prompted a groundswell of concern from political and media circles about its potential privacy implications.
The concerns echo the view from PA’s former legal editor Mike Dodd last year that the growing risk from privacy laws to freedom of expression will “go even further” before the public realises things have gone too far. Similarly Press Gazette editor-in-chief Dominic Ponsford wrote earlier this year that privacy is now a much bigger threat to publishers than libel.
Matthew Dando, a partner at media, technology and IP law firm Wiggin LLP in the defamation and litigation practice, felt the Meghan ruling has “very concerning consequences for freedom of expression”.
He criticised “judge-made law” and “a trend that now in my view is moving much more towards being pro-privacy than pro-freedom of expression”.
Dando told Press Gazette: “I think that is concerning, and there needs to be some way back to redress the balance.
“Because in reality, there’s now a sort of prima facie or presumptive privacy right in quite a few situations which is the starting point and then the burden will be on the publisher to displace that – which creates an issue in terms of law because I don’t think privacy should be presumptively more important.”
Dando pointed out that, unlike libel, publishers cannot use the truth to defend a privacy case: “Privacy is effectively a blanket on reporting things which are true, which makes it particularly dangerous, I think.”
There have been three cases in recent years creating a precedent of privacy, although unlike the Meghan case they all relate to those suspected of criminal activity: Cliff Richard’s landmark win against the BBC, an anonymous businessman’s win against Bloomberg which has continued to the Supreme Court, and a man arrested but never charged in connection with the Manchester Arena terror attack who won against Mail Online.
Dando said the Meghan case “does take it one step further” because the judges found that even if her letter was prepared with her communications team with the view that it may be made public, this still did not displace her privacy rights.
He also raised concerns that powerful and public figures are now permitted through privacy law to “control agendas and curate personas and curate their own image”.
The uncertainty created by new rulings like this can also lead to self-censorship and editorial conservatism within newsrooms, he added, as editors fear a negative judgment.
Asked what he wants to see happen next, Dando said: “I think there definitely needs to be a reversal of the current very clear trend, which is to favour privacy over freedom of expression. I think freedom of expression needs to be bolstered and privacy subordinated from where we are now.”
He added that this would ideally happen through Court of Appeal decisions but that it seemed some sort of legislative intervention would be needed.
The Daily Mail reported that senior figures in Government felt a law change may be needed to redress the balance between privacy and free speech as the case took things “too far” and there was a “concern about where this leaves free speech and the freedom of the press”, according to one Whitehall source.
It reported that an unnamed Cabinet minister said the case went beyond what was intended by Parliament for the right to privacy in the Human Rights Act, which came into force in 2000, with too little weight given to freedom of expression.
They told the Mail: “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. If this is what the law says then it needs to change. It feels like we have had judge-invented law. It draws on laws passed by Parliament but it is not what Parliament ever intended and we should correct that.”
The Daily Mail article also editorialised on the theme, adding: “Any change in the law would not affect the progress or outcome of the case. But it could prevent it being used by the wealthy and powerful to block press scrutiny of their activities.”
Similarly, a Telegraph leader column said the two human rights are “supposed to have equal weight, and yet courts have increasingly favoured privacy over free expression”.
It added: “…what would be better is for the Government to put a free speech Bill before Parliament that would clarify the law and make double standards harder to uphold.”
On Sunday, Justice Secretary Dominic Raab, who has previously vowed to overhaul the Human Rights Act, told Times Radio: “I think the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct.”
However, two academics spoken to by Press Gazette disagreed there had been any such “drift” in the law.
Paul Lashmar, an investigative journalist and former head of the journalism department at City University, told Press Gazette the Markle case had “just got caught up” in the Government’s attempt to portray the Human Rights Act as a “faulty piece of EU legislation”.
He said he did not think the “interests of journalism as a whole is going to be helped by any of this” and that politicians are using a “particular journalistic instance, a topical and controversial case, to help undermine an Act that most people I know that think about these things think is best left in place”.
Lashmar said that he asked his ethics students at City last year whether or not they would have published Meghan’s letter and to justify it either way. He said that of dozens of answers he read, not one attempted to justify publication.
He said he personally did not think the case was the right one to argue about freedom of expression on because he had “serious doubts about whether it’s justifiable in a public interest argument”.
“As an investigative journalist I have relied very heavily on being able to make coherent public interest arguments,” he added. “The goings on between Meghan and her father do not in my mind constitute a major public interest issue, and certainly one I wouldn’t want to fight.”
Lashmar added: “I think using the Human Rights Act and freedom of expression to justify what I don’t think was in the public interest in the first place seems to be a complete diversion or red herring. It’s there to distract us.”
Dr Hayleigh Bosher, a senior lecturer in copyright and intellectual property law at Brunel University who has been following the Markle case, shared the same view.
She told Press Gazette Meghan had a “clear case” on both the privacy and copyright issues of her case, and that the use of the letter on either point could not be argued as being proportionate because so much of it was used.
The original Mail on Sunday story was headlined: “World exclusive: Meghan’s shattering letter to her father”. Dr Bosher said the freedom of expression argument failed in part because the article did not appear to be genuinely intended to further Mr Markle’s freedom of speech in the wake of the People article, but instead was “about all the drama about Meghan”.
Both academics pointed out that the UK was at the forefront of enshrining human rights, including privacy, in law before it was adopted by the EU.
Dr Bosher said: Raab’s comments about a European version of freedom of speech were “very provocative… but that’s not what happened here”.
“Even if [Meghan] lost on the privacy argument, she would have 100% always won on the copyright argument anyway,” she added. “So it wouldn’t make a difference. So he’s very much using that momentum, the criticism of this thing – well, that’s what my view is – to try to support his campaign for a homegrown human rights law…
“It’s not that there isn’t any freedom of expression, it’s that they infringed on her privacy in a disproportionate manner.”
Even a representative from Article 19, a campaign group that fights for freedom of expression, felt Raab’s words were overblown.
David Banisar, the group’s head of transparency, told Press Gazette similar conversations have gone on about privacy overreach for decades and that he had not seen a material change in the amount of cases or their impact on journalism in that time. Asked if there is a general “drift” towards privacy, he said: “No more than there ever has been.”
“Rich people are probably abusing it like they abuse the libel law and every other law we have in this country for their own good but no, I don’t think we’re freight-training towards disaster,” he said.
Instead Banisar pointed to a number of other laws he felt are threatening free speech more than privacy: the libel laws that enable the rich and powerful to bring so-called strategic lawsuit against public participation (SLAPP) cases, the proposed Official Secrets Act reform that it is feared could see journalists treated like spies, proposed restrictions on protests, and the Academic Freedom Bill that Article 19 said could have a chilling effect on universities.
Banisar said of Raab: “It’s nice that he suddenly cares about free speech, but maybe he can care about it in a more useful way.”
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