In defence of privacy and the judiciary: the fall-out from HRH the Duchess of Sussex v Associated Newspapers – Iain Wilson

Here we are again.  The press doesn’t like us having private lives and the government doesn’t like judges making decisions it disagrees with.  These two angsts collided recently following the Court of Appeal’s decision in HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810.  Something, we are told, needs to be done.  The answer apparently is (yet again) to abolish the Human Rights Act 1998 and introduce a system whereby the government can review and nullify the effect of binding court decisions.

Let’s start with privacy.  It is odd to have to defend – or even define – privacy.  If we’re getting undressed, we expect to be able to do so in private.  If we are seeing our doctor, we expect details relating to any medical condition to be kept confidential.  If we are engaged in sexual activity, we expect this to be a matter between ourselves and our partners.   If we are sending a family member a WhatsApp message, the presumption is that it won’t end up in a national newspaper.  Nothing about any of this seems to be particularly controversial or European (or, as the current government puts it, ‘Germanic’).

At its heart, privacy is about dignity, autonomy, respect, and civility.  These are not foreign concepts.  A right to privacy is so fundamental it is scary to imagine what life would be like without it (history and fiction are replete with examples if you need help).

The right to respect for a private life and private correspondence is enshrined in Article 8 of the European Convention of Human Rights (the ‘ECHR’).  The ECHR came into force in 1953.  It was created in response to the atrocities committed during the Second World War and the growth of Stalinism.  Churchill was one of its ‘founding fathers’ and the original text was drafted by British MP and lawyer/Nuremberg prosecutor Sir David Maxwell-Fyfe.  It shares many similarities with the English Bill of Rights.

The ECHR is not complicated or especially controversial.  It affords the citizens of signatory states basic rights or freedoms, for example the right to life, the right to a fair trial, freedom from slavery and torture, freedom of belief, , freedom of association, freedom to marry, and freedom of expression.  It would  be difficult for most British people to identify any right that is objectionable (unless, perhaps, they are in favour of the death penalty).  Where a state breaches the ECHR, a Court set up by signatory members – the European Court of Human Rights (which has nothing to do with the European Union) – can order a state to pay an aggrieved citizen compensation.  These sums tend to be modest and symbolic.  The Court does not act as an appellate court and cannot overturn the decision of a domestic court.

The Human Rights Act 1998, which came into force in 2000, belatedly incorporated the ECHR into UK domestic law.  It is a similarly simple piece of legislation, which has three basic purposes: to allow individuals to enforce their ECHR rights in our domestic courts, to require public bodies to respect ECHR rights, and to require parliament to check that any new legislation is compatible with the ECHR.

Problems arise for some because the Human Rights Act requires English courts to interpret existing law in a way which is compatible with convention rights.  Much to the annoyance of the media, this includes the right to respect for a private life and private correspondence (they are not so troubled about freedom of expression).  But the Act only requires the courts to do this ‘insofar as it is possible’.  Moreover, ECHR decisions have never been binding on English courts.  They are merely persuasive. This gives a judge a considerable margin of discretion.

Notwithstanding this, the press consistently uses ‘human rights’ as a pejorative term and tell us the system is flawed.  We are led to believe that these seemingly uncontroversial rights are in fact a cloak for all manner of injustice, including, for example, allowing foreign murderers to remain in the country on tenuous grounds (e.g. deportation would mean a cat would go unfed).  These stories are at best grossly distorted; at worst outright lies.

As any decent lawyer will tell you, tenuous pleas of human rights are typically given short shrift by judges.  Indeed, it’s the judiciary who have largely sustained this robust (but mostly fair) approach to human rights law in England and Wales.  And yet, we have grown used to large sections of the press telling us that unelected judges (naturally, in cahoots with Europe) are forcing a dangerous human rights agenda on this country in defiance of the will of the people.

In the context of privacy rights, there is a distinct undertone of self-interest to the press’s opposition.  The press, for obvious reasons, has never been in favour of any expansion of privacy rights and has frequently engaged in judge-bashing when a privacy claim has succeeded.  Recently, and more alarmingly, we’ve also been hearing this same rhetoric from the government.

The United Kingdom has, historically, had one of the most stable systems of government, in no small part because of the strength of our unwritten constitution which at its core is based around the ‘separation of powers’.  Parliament legislates, the executive governs, and the judiciary interprets and gives effect to the law.  It’s a system which has generally worked well over the years and is a world away from, say, the absurdity of politically appointed judges in the USA.  The judiciary is independent, and the government should respect this.

It is sometimes suggested that human rights law is being created by judges and that this is anti-democratic.  Quite apart from the Human Rights Act being an act of parliament, this charge generally (and perhaps deliberately) overlooks the fact that much of the English law, (including most torts and various criminal offences, including murder) derives from common law and not statute.  The common law is not a new phenomenon; it has been with us for nearly a millennium.  It is based around the principle that all individuals should be treated the same and that on any given set of facts there should be some certainty as to the legal position.  Statute can never cater for all factual scenarios, and attempts to make it do so, have, in recent times, seen the near-constant creation of new, and often long and impenetrable legislation, which risks leading to ignorance and confusion about the general state of the law amongst the public.  The common law fills in the gaps that statute inevitably – and often very sensibly – leaves.   It has been developed over the centuries, constantly being refined, and evolving – and occasionally – being modified, repealed or reversed by statutory law.

The UK’s privacy’s law has its origins in the law of confidence, which in itself dates back at least 170 years.  Indeed, its existence was recognised by the Court in a case not a million miles away factually from the Duchess of Sussex’s case.  In Prince Albert v Strange [1849] EWHC Ch J20, the Court restrained publication of private etchings drawn by Queen Victoria and her husband.

Since the inception of the Human Rights Act 1998, privacy law has been interpreted in a way to give effect to individuals’ Article 8 rights (similarly, any attempt to restrain publication of information has been subject to the careful consideration of an individual’s Article 10 freedom of expression rights, specifically catered for by section 12 of the Human Rights Act 1998).  Misuse of private information was recognised as a cause of action in Campbell v MGN Ltd [2004] UKHL 22 and is now firmly established in English law.  However, as Sir Michael Tugendhat said in Tugendhat and Christie: The Law of Privacy and the Media (Third Edition, OUP, 2016), had the right to respect for private life not been a principle which was already recognised in English law, the UK would never have accepted to be bound by Article 8 in the first place.

Pausing here, insofar as the Human Rights Act has advanced privacy law (and it undeniably has), it is important to remember, as mentioned above, that the Human Rights Act was an act of parliament.  Thus, in having regard for Article 8 and 10 rights, judges are doing no more than enforcing and implementing laws enacted by parliament.  Moreover, in response to suggestions that there is some sort of democratic deficit, there was nothing underhand or unexpected about the enactment.  The Labour Party’s manifesto prior to the 1997 general election read: “Citizens should have statutory rights to enforce their human rights in the UK courts. We will by statute incorporate the European Convention on Human Rights into UK law to bring these rights home and allow our people access to them in their national courts. The incorporation of the European Convention will establish a floor, not a ceiling, for human rights. Parliament will remain free to enhance these rights, for example by a Freedom of Information Act.”  As we all know, Labour Party won a landslide victory in the 1997 general election and enjoyed a much stronger mandate than the current government.

The press has moaned about the evolution of privacy law.  And it may have effectively killed the ‘kiss and tell’ story and other private tittle tattle. What it hasn’t done, however, is created any blanket law.  Privacy injunctions are few and far between (the court considered two new applications in the first six months of 2021) and regardless of whether an individual has a realistic expectation of privacy or there is a duty of confidence, material can be published where there is an overriding justification for doing so (e.g. there is a public interest).  We see this all the time in the publication of certain stories, for example investigative journalists taking jobs at organisations to expose wrongdoing; hypocritical politicians taking drugs with prostitutes or having affairs with colleagues in breach of lockdown regulations.

Where there is an overriding public interest, an application for a privacy injunction will fail.  A good example is AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, where the Court of Appeal held “The core information in this story, namely that the father [then Mayor of London, Boris Johnson] had an adulterous affair with the mother, deceiving both his wife and the mother’s partner and that the claimant, born about 9 months later, was likely to be the father’s child, was a public interest matter which the electorate was entitled to know when considering his fitness for high public office”.  Similarly, many of the applications for injunctions that first got the press wound up in 2011 were ultimately unsuccessful, e.g. Terry v Persons Unknown (Rev 1) [2010] EWHC 119 (QB) (where the claim was essentially held to be a defamation claim in disguise).

Had parliament been sufficiently concerned about the direction of privacy law over the past 20 years it could have chosen to do something about it.  It hasn’t, because on any sensible analysis the judiciary have worked hard to strike the balance between a right to privacy and the right to freedom of expression – and generally succeeded.  Through a series of reasoned judgments, they have created a jurisprudence that it would be very difficult to reduce to, much less improve with, new legislation.

So why is the government threatening to do just that now?  Primarily because it’s very upset with the judiciary.  On two recent occasions (Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 and Miller, R (on the application of) v The Prime Minister [2019] UKSC 41) the Supreme Court has effectively told the government it is not above the law.  The audacity of the Court to rule on these issues apparently challenges the concept of parliamentary sovereignty (even though both claims sought to protect parliamentary sovereignty from the executive).  Similarly, the government is frustrated by judicial review; an important constitutional mechanism whereby individuals can challenge the lawfulness of a decision by the government or any public body.  The government proposes that various decisions are no longer justiciable.  You don’t need to be a constitutional lawyer to realise that such moves are amongst the first steps one would take if they wanted to establish an autocracy.

Secondly, the government wants to stay on the right side of the popular press.  It has presumably been calculated that a good way of doing this is by promising to unpick the common law of privacy and have a bash at human rights and judicial review generally (coincidentally many judicial reviews concern challenges to immigration decisions).

Factor in that most of the popular press has never really taken to the Duchess of Sussex and you have the perfect storm.

So, what of the decision in HRH the Duchess of Sussex v Associated Newspapers Ltd?  The press would have you believe that this was both a landmark and highly controversial judgment: “Fears raised over judge-led privacy laws after Meghan, Duchess of Sussex’s legal victory”, “Fears raised over judge-led privacy laws after Meghan, Duchess of Sussex’s legal victory” (The Telegraph),  “New freedom of speech reforms to be revealed to tackle ‘wokery and political correctness’ amid fears judges are ‘drawing up privacy laws by the back door’”, “Ministers ‘could use legislation to strike out judicial rulings they don’t like’ under reforms being pushed by Boris Johnson” (the Mail), “Meghan court ruling followed by new UK freedom of speech laws” (the Express).  Sadly, a handful of lawyers, who should have known better, were happy to provide the press with soundbites that suggested the decision represented a seismic realignment of the law of privacy, with the scales now very much balanced in favour of the privacy rights at the expense of freedom of expression.  The reality is that the decision in HRH the Duchess of Sussex v Associated Newspapers Ltd. created no legal precedent, and the outcome was predictable.  It was a case that only attracted attention because of who the claimant was.

The facts were simple.  In essence, the Claimant had written a private and very personal five-page handwritten letter to her father Thomas Markle.  The Mail on Sunday obtained and published half the letter.  The headline read “Revealed: The letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’” and the first line of the article: “the full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding can be revealed for the first time today”.

The Duchess sued for misuse of private information and breach of copyright.

The Mail on Sunday’s justification for the infringement of the Duchesses’ privacy rights was that the publication of the letter was necessary to correct a misimpression – namely an article published in the US-based People magazine which mentioned the existence of the letter, and was critical of Thomas Markle.  The High Court and Court of Appeal held that, insofar as this was even arguable, it could only possibly relate to a small part of the article and that, in any event, the headline was instructive as to what the real purpose of the article was.  There was no legitimate public interest in overriding privacy rights.  To put it colloquially, this was just celebrity tittle-tattle.

The defence of the copyright claim suffered a similar fate.  Clearly, the copyright in the letter belonged to the Duchess (having penned it).  The Court held, and the Court of Appeal agreed, that any defence of ‘fair dealing’ was unsustainable in the circumstances where the article could not be justified on the basis of freedom of expression.

When considering the misreporting of the case, it is worth noting:-

1. The claim was so strong that summary judgment was granted. This is relatively unusual and can only occur where there is no real prospect of a defence succeeding at trial.
2. The first instance decision was made by Mr Justice Warby (as he then was). At the time, Mr Justice Warby was the judge in charge of the media and communications list.  He now sits in the Court of Appeal.
3. The constitution of the Court of Appeal was similarly senior: Sir Geoffrey Vos (who gave the lead judgment), Dame Victoria Sharp and Lord Justice Bean. Sir Geoffrey Vos is the Master of the Rolls, the most senior specialist civil judge in the country.  Dame Victoria Sharp has sat in the Court of Appeal for nine years and is the President of the Queen’s Bench Division.  Prior to that she was a specialist media law judge in the High Court.  Bean LJ has sat in the Court of Appeal for eight years and prior to that as a High Court judge sat in several media law cases.
4. Prior to their judicial careers, Warby LJ and Dame Victoria Sharp worked at the media law bar, representing both claimants and defendants (including national newspapers).

In short, the case was heard by highly regarded and experienced judges who were eminently capable of considering the matter carefully from both sides.  None of them have a reputation for being ‘claimant-friendly’ or maverick crusaders for privacy rights.

It won’t be lost on the observant reader, that Article 8 expressly affords individuals with a right to respect for their private lives and correspondence.  If there was ever a case fit for summary judgment, this was it.  The only surprising feature of the case was that the Claimant waited so long to seek summary judgment.  Family members should be free to communicate sensitive information with one another without the communication ending up verbatim in the national press.  To allow intrusions of this nature would strip one away a very important facet of their autonomy and dignity.

Any argument that public figures have no right to privacy does not warrant serious debate.  Yes, they may choose to waive certain aspects of their private lives by putting information in the public domain, but privacy is not ‘all or nothing’; by volunteering information about, for example, their relationship with their parents, or their use of prohibited drugs, a person does not lose their right to protect their sex life from people seeking casual titillation.  Another lazy comment trotted out in the press stories concerning HRH the Duchess of Sussex v Associated Newspapers Ltd, was that the law of privacy was not just the preserve of the rich, powerful and famous, but that it was actively being weaponised by them.  On the latter point, the judicial statistics simply don’t support this.  On the former point, this is not correct (this firm has asserted privacy claims on behalf of individuals from various backgrounds, many of whom are not public figures) and, as in the examples above, privacy claims often fail.  There is, admittedly, a general access to justice point (not helped by the government abolishing the recoverability of success fees in privacy claims), but this is omnipresent in every area of law and a somewhat ironic point for the national press to make, given that they have in-house counsel, and specialist media lawyers on retainer.

It may be that December’s attack on privacy and the judiciary was simply populist rhetoric.  Let’s hope so.  An individual’s right to privacy, like the independence of the judiciary, is fundamental and does not require political interference.  By and large, the judiciary have done well in applying the common law in a considered and fair manner, knowing that they will come into criticism from the press for doing so.  As Lord Mance said in PJS v News Group Newspapers Ltd (Rev 1) [2016] UKSC 26 “As to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid.”.  It is unfortunate that the government has seen fit to back the press rather than support the judiciary in its thankless task.

This post originally appeared on the Brett Wilson Media and Communications Blog and is reproduced with permission and thanks