Reading the Duchess of Sussex’s press release after the Court of Appeal upheld her privacy case against the Mail on Sunday, you might be forgiven for thinking of C.S. Lewis’s Last Battle. Meghan talked of her part in the fight between right and wrong, her brave struggle against ‘deception, intimidation, and calculated attacks’, and how she was taking on a tabloid industry that conditioned people to be cruel, profited from lies and pain, and had now broken the law.
Well, up to a point, Duchess. The reality was much drearier. The articles in the Mail on Sunday told no lies, and were more a comment on Meghan’s apparent insistence on blaming her father for her difficulties following her wedding. The only cruelty and intimidation seems to have been that the MoS article was much less complimentary to Meghan than a fawning 2019 piece in America’s People magazine which had praised her for her compassion and sympathy for the underprivileged.
Even the illegality was relatively technical. The case turned on the paper’s publishing of a letter written by Meghan to her father which had been passed on by him. The Court of Appeal’s said that reproducing it had been a breach of copyright, and that in addition Meghan had had a reasonable expectation of privacy in its content, which the paper had breached (despite the fact she had known the letter might be disclosed and it had clearly been shown to others sympathetic to her).
This episode needs to worry us. It is hard to see the MoS as having committed anything but a venial wrong, in the course of running what was essentially an entirely justifiable piece about the Sussexes based on true facts. The fact that it may have been hurtful or even malicious is neither here nor there; we are entitled to our opinions about public figures, fair or unfair. Yet the result of this case is horrendous for the Mail. Lawyers’ fees, most of which the paper will have to pay, are already in the millions, and that is without any damages (and the smart money here is on a six-figure sum). The Mail on Sunday may be able to afford these sums; but other outlets can’t, and this ought to concern anyone who supports the idea of a free press.
Something, in other words, is clearly wrong with our privacy laws. That much is easy to say. What to do about it, however, is harder.
Despite concerns about this being a judge-led privacy law, the issue is actually one inextricably tied up not with our courts, but with human rights judges in Strasbourg. Since 2004 these judges, who have a patrician dislike of the tabloid press, have been aggressively expanding their interpretation of the right to a private life under Article 8 of the European Convention on Human Rights.
Applying tendentious conceptions of autonomy and human dignity, they have interpreted Article 8 as requiring that everyone have an independent legal right to suppress publication of even true material about themselves, provided only that a human rights judge believes there is a reasonable expectation of keeping it private
They have rejected entirely the robust (and pro-press freedom) idea that no one can really complain about the press disclosing true facts and that people should be allowed to make up their own mind about them. Instead they insist that every privacy case must involve a balance between this new right to privacy and the right to free speech, with neither having priority.
There is lots wrong with this idea. It is vague, leaving a great deal to the courts. And it is naturally biased against press freedom. Nor, despite being a matter of human rights, does it favour the underdogs of society. The list of those who have successfully invoked it in Europe or Britain reads like a roll-call of the rich, famous and privileged.
The original decision of the Strasbourg court that started the whole process concerned Princess Caroline of Monaco; since then, not including the Duchess of Sussex, beneficiaries have included Naomi Campbell, Max Mosley, J.K.Rowling, Catherine Zeta Jones, and in 2016 an illustrious rock star we are still technically forbidden to name.
Unfortunately – precisely because it is a matter of human rights – doing anything about it is politically difficult. In the abstract one suspects most Tory MPs and a good proportion of the opposition would be sympathetic to curbing the ability of celebrities to use human rights laws to suppress information they would rather remain under wraps. But any such legislation would immediately put the UK in breach of the ECHR and invite a judgment from Strasbourg which would then have to be ignored.
Would the government have the courage to say boo to the human rights goose? So far it never really has (although in 2005 the UK did refuse for a dozen years to allow prisoners to vote before eventually yielding to Euro-attrition in 2017). But things could change. Priti Patel is said to be a genuine human rights sceptic. The Sussex judgment, with the licence it gives to celebrities like Meghan to use privacy laws as a tool of publicity management, has already been panned by a number of politicians and lawyers (including apparently, off the record, one senior judge). Notably the Polish government last week was also prepared to defy Strasbourg and bear the consequences
Nevertheless, I’m not betting against the human rights court. On hot-button topics like human rights, the UK establishment blob has an uncanny way of ensuring it gets what it wants. Depressingly, it may well succeed this time too.