Ashfords Solicitors - McKennitt Appeal: Right To Privacy Trumps the Right To Publish

That case, explained more fully in our January 2006 article '', concluded that Ms Ash had misused confidential information that was available to her when publishing her book 'Travels with Loreena Mckennitt: My life as a friend'.

The appeal addressed the tension between Article 8 (the right to private and family life) and Article 10 (freedom of expression). The latter is routinely asserted by publishers to try to justify their publication of information which they contend should be available to the public.

On appeal, Buxton LJ said that it was first necessary to determine whether the information that Ms Ash wished to publish about Ms McKennitt was indeed private (and thus Ms McKennitt's Article 8 rights were in issue). If it was, the next question was whether Article 10 should be invoked to allow publication of the information on "the basis of freedom of expression".

Buxton LJ confirmed that the information was protected under Article 8 and that there had been no error of principle by the trial judge (when balancing the competing rights) to decline publication under Article 10. Significantly, he held that there were no 'special circumstances' existing that compelled publication.

When deciding whether to allow 'private' information to be published, the Court of Appeal made it clear that if the information was gained by someone whilst under an express or implied duty of confidence, then the presence of the duty of confidentiality is a factor which mitigates against allowing the information to be published.

Ms Mckennitt closely guarded her personal private information and had established a relationship of confidence with Ms Ash. Evidence as to this confidential relationship came forward in the form of some of the passages within the book itself, where she explained (for example) that they shared intimate details with each other. This all led to an increased expectation of privacy.

The judgment of the Court of Appeal also confirmed the authority of the Von Hannover case, which was heard in 2005 before the Luxembourg Court. Von Hannover took a wide view of the notion of what constitutes 'private life' and suggested a much tougher approach when deciding what could be published as being in the 'public interest'.

Conclusion

Even when private information relates to a celebrity (eg details of their home life, sexual relationships, etc), there is a prima facie right to keep this information private. This will remain the case unless there is an overriding reason for it to be published (for example, to reveal a major misdemeanor or public wrong-doing).

The McKennitt case re-iterates the maxim that 'what interests the public is not necessarily in the public interest' and should not be published if it amounts to information in respect of which the person the subject of the information has a 'reasonable expectation of privacy'.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

31st January 2007

Key Contacts

McKennitt Appeal: Right To Privacy Trumps the Right To Publish

Introduction