On Friday 24 September 2010, the Guardian published a correction about the reporting of an article by James Robinson which originally appeared on 14 September 2010. The correction appears as a footnote to the original article and is reproduced here:
“This footnote was added on 24 September 2010. It was incorrect to state that Ms McKennitt did not claim that the contents of the book were untrue. Ms McKennitt sued for privacy and not for libel, so the case did not primarily engage with the truth or falsity of the book. However, Ms Ash raised an issue that Ms McKennitt was not entitled to an expectation of privacy because of her conduct in relation to an advance of money, which was detailed in the book. This was challenged by Ms McKennitt. On the evidence, the Judge held that Ms Ash’s account in the book was untrue and accordingly her claim for an injunction on the grounds of privacy succeeded.”
The correction is important since James Robinson is not the only journalist to make this error concerning the important case of McKennitt v Ash. The same error appears part of Paul Dacre’s controversial speech in 2008 to the Society of Editors as well a number of articles by the media commentator Stephen Glover, for example one in 2007 in the Independent and another more recent article in the Independent in March of this year.
These repeated errors miss an important point about this development within the law of privacy. It was the Court of Appeal decision in McKennitt v Ash [ 2008] QB 73 , comprising of Buxton LJ, Longmore LJ ( pictured) and Latham LJ, which first set out clearly the false privacy principles namely;
The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry. …
… The watered-down claim that Ms McKennitt was being vindictive in pursuing an immoral claim, said now to be the public interest justification for publishing the private information, could not be intelligently adjudicated upon without the judge deciding whether that claim was true or false. That meant that he had also to decide the truth or falsity of other incidental allegations made by Ms Ash in seeking to re-argue through her book the matters already disposed of by the Tomlin order. But the fact that it may be relevant to decide the truth or falsity of matters raised in support of an Article 10 claim to freedom of expression does not mean that, if matters are shown to be false, the claim to misuse of private information then disappears.”
The Defendant’s application for permission to Appeal to the House of Lords was refused at the beginning of 2007. The Court of Appeal decision in McKennitt v Ash was followed shortly afterwards in the Court of Appeal decision in Lord Browne v Associated Newspapers  QB 103.
The false privacy doctrine has been discussed a number of times on this blog here and here. Predictably it has raised and highlighted issues about the overlap between claims in privacy and claims in libel and the threshold test for interim injunctions. These issues were considered in the judgment in Terry v Persons Unknown by Tugendhat J earlier this year. They were also discussed at the recent 5RB conference at the end of last month and by Godwin Busitil and Patrick McCafferty (both from 5RB ) in their article reproduced on this blog earlier this year.
Debate about these important issues is to be welcomed but it should be an informed debate not one based on repeated mischaracterisations of previous and current decisions.