Human rights lawyer GEOFFREY ROBERTSON issues a stark warning after Meghan’s attack on the press
This victory sets a precedent,” said Meghan Markle, immediately after last week’s Court of Appeals ruling against The Mail on Sunday – although the court took the trouble to explain that it does not set a precedent at all.
The judges of the court ruled that this newspaper’s decision to publish half of a letter from Meghan to her father was indeed an invasion of her privacy, as she claimed. Yet her “win” was simply an application of laws “developed” — in effect created — by judges over the past 15 years. And this is significant.
This case has drawn attention to a dangerous proliferation of judge-made restrictions on free speech that increasingly prevent our society from holding the rich and powerful to account.
Those laws have troubling implications for freedom of expression, and in this case they were applied after a “summary verdict,” that is, without due process of scrutiny of facts and evidence. Now there are loud demands for Parliament to intervene to strengthen our protection of freedom of expression.
Our first privacy law came in 1360, before the invention of printing, to punish those who “listen under walls and windows, or in the eaves of a house…to frame slanderous and malicious stories” .
Such eavesdroppers were considered a common nuisance, stockpiled and pelted with rotten eggs.
Yet her “win” was simply an application of laws “developed” — in effect created — by judges over the past 15 years. And this is significant, writes Geoffrey Robertson
However, a right to privacy did not exist in the common law of England until 1998, when the Blair administration passed the European Convention on Human Rights into UK law.
Article 8 (drafted after World War II to stop raids such as those carried out by the Gestapo) stated that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, and this is what Meghan invoked in her claim to The Mail on Sunday.
Yet Article 10 of the same treaty stated that “everyone has the right to freedom of expression.” What if these two rights clashed?
At the time, it was said that the courts should use a presumption in favor of freedom of expression – that the two rights should not be weighed against each other – and this allayed media concerns.
In 2005, however, this perfectly sensible approach was rejected by the courts in favor of giving equal value to ‘privacy’ to freedom of expression.
Judges had to perform a balancing act, “weighing” – inevitably, according to their own values – the importance of each right as it applied to the facts of the case.
And so the rich and famous were given a new legal weapon that was relentlessly wielded by “reputation” lawyers. The problem, of course, is that these two rights cannot be sensibly ‘balanced’ at all.
And so the rich and famous were given a new legal weapon that was relentlessly wielded by “reputation” lawyers. The problem, of course, is that these two rights cannot be “balanced” sensibly at all.
For example, judges generally rule out any “right” to amusement or amusement, or even the “right” to enjoy the hypocrisy of public figures. Instead, they solemnly say that “what is in the public interest should not be confused with what interests the public” – a mantra that usually allows them to rule against popular newspapers.
This newly developed law has had serious implications for public interest reporting. There has been a recent increase in threats against publishers and human rights organizations by lawyers in London targeting foreign individuals who fear allegations of corruption or human rights abuses.
The truth is not a defense against a privacy claim and the cost of fighting an action is a serious barrier to exercising the ‘right’ to freedom of expression. Moreover, the right to privacy is not purely subjective, but uncertain and unpredictable.
For example, the appeals court said The Mail on Sunday might have avoided liability by publishing just one paragraph of Meghan’s father’s letter. But which paragraph? And any selection would expose the Editor to the charge of “cherry picking,” and when it comes to documents, it can be important to see them fully in context.
For example, the appeals court said The Mail on Sunday might have avoided liability by publishing just one paragraph of Meghan’s father’s letter. In the photo: Meghan and her father
Then there’s the question of whether the letter was truly private in the first place. Because there was no trial, the evidence was never tested. This approach puts the judge in the editor’s seat – a position that defamation judges have always refused to take for very good reasons.
Meghan’s crusade against the media would have little traction in her favored state of residence, where the First Amendment to the US Constitution (passed over hostility to Britain’s incitement laws) prohibits making a law that violates media freedom.
There are privacy laws in the United States, but to avoid violating the First Amendment, they focus on gross invasions without newsworthy interest, such as the publication of medical records.
Their big debate over privacy will come into another context next year, when a Supreme Court full of Trump appointees is likely to overturn Roe v Wade — women’s right to have abortions, which is based on their right to privacy.
Their big debate over privacy will come into another context next year, when a Supreme Court full of Trump appointees is likely to overturn Roe v Wade — women’s right to have abortions, which is based on their right to privacy. Pictured: A protest against the Roe v Wade . Supreme Court hearing
Meghan could be more useful in defending that right in the US than continuing her courtroom crusade against the media in the UK.
Should Parliament intervene and enshrine privacy in law?
That solution is attractive, but it ignores the difficulty of outlining the myriad factual situations that could give rise to a claim.
And reformers must be careful what they wish for: MPs have self-interest. There is no class more ardently longing for a law to cover up their peccadillos.
Any law they enact could stop the publication of photos of a future Matt Hancock breaking his own rules by hugging a lover “in the privacy of his own office.”
The best way forward – which could be taken by both Parliament and the Supreme Court – would be to return to the view that the right to freedom of expression as set out in Article 10 of the Treaty should be to his advantage. prevail over the right to privacy defined in Article 8.
Finding a balance between two incomparable rights is unworkable and subjective.
Instead, we should focus on the real question of whether the defendant has crossed the red line: that of inhumanity.
This does not mean that we have to go back to a time when privacy rights did not yet exist. They are a necessary protection for civilians against cruelty and unfair media demonization. But they should be limited to cases where victims deserve compensation.
The proliferation of privacy claims is just one aspect of laws that are making investigative journalism increasingly cold, invoked by a growing breed of lawyers promising the rich and famous to restore their often-overhyped reputation.
Even national newspapers struggle to pay the exorbitant legal costs of setting up a defense, let alone small publishers and human rights organizations that strive to expose abuses and corruption abroad but are threatened with bankruptcy by the government. prospect of legal reprisals in London.
Increasingly, it can be said that Britain is not a country that has freedom of speech, but an expensive one.