Best Kept Secret: A Right to Privacy
Introduction
In 1997, when Canadian folk-artist Loreena McKennitt produced her globally successful album 'Book of Secrets', it is unlikely that she realised just how prophetic the title would turn out to be.
Last year Ms McKennitt took the step of issuing legal proceedings against her former friend Niema Ash, in order to prevent the publication of her book 'Travels with Loreena McKennitt: My Life as a Friend'. McKennitt alleged that the book unlawfully revealed details of McKennitt's personal life and her intimate personal feelings that she wanted to keep secret.
McKennitt succeeded with the majority of her claim, and the Court granted an injunction preventing the further publication of certain passages contained in the book.
The case is significant because it is one of the first English cases to be decided following the decision of the European Court of Human Rights in Von Hannover v Germany. This case involved a successful claim brought by Princess Caroline of Monaco that her privacy had been unlawfully interfered with by the German press.
As Carl Steele, a senior associate in the Ashfords' IP team explains "The Von Hannover case concerned the publication by various German magazines of photographs of Princess Caroline engaged in her everyday daily life (e.g. sitting in a restaurant with her boyfriend, visiting a local market, leaving her Parisian residence, etc). The Court held that such activity infringed her right to a private life, pursuant to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). The Court declared that the concept of private life, as protected by Article 8, extended to matters of personal identity, including photographs. Further, even celebrities and well-known public figures could have a 'legitimate expectation' of privacy and respect for their private life on some occasions, including in relation to certain scenes from their daily life that took place in public (i.e. which could be witnessed by others), as opposed to in private".
The Von Hannover decision thus extended the width of the notion of 'private life' and was seen as bolstering the rights of famous individuals against intrusive media coverage.
The Court in the McKennitt case recognised and acknowledged the wider definition of 'private life' as confirmed in the Von Hannover decision. However, it also recognised that the media and others (such as, in this case, Ms Ash) have a conflicting right of 'freedom of expression' pursuant to Article 10 of the ECHR. Where both such rights are engaged, the Court held that there is a need to carry out a balancing exercise.
As Carl Steele explains, "The first step for the Court was to ascertain whether Ms McKennitt was, in the circumstances, entitled to a 'reasonable expectation of privacy'. If this was established, the next step was to carry out a balancing exercise, in order to decide whether Ms Ash's right to publish her book (and thus destroy Ms McKennitt's right of privacy) overrode Ms McKennitt's expectation of privacy. For example, was there a 'public interest' in the information contained in the book being made available to the public?"
Expectation of Privacy
The Court held that whether an expectation of privacy exists will depend on the circumstances. Was the information imparted in conditions where a duty of confidence was either clear or could reasonably be implied or inferred? Was the subject matter of a type that is typically considered 'confidential' or 'private'?
Much of the Court's work involved determining which matters 'crossed the threshold' and therefore gave rise to a reasonable expectation of privacy. The following were, in the McKennitt case, said to cross that line:
- An individual's private emotional reactions to bereavement
- Details regarding a person's home: the décor, the layout, the state of cleanliness or how the occupiers behave inside
- Intimate revelations regarding the state of a person's health
- The detail of intimate conversations with individuals imparted under conditions of trust
- An individual's confidential contractual terms
- The details of a dispute which is subject to the terms of a settlement made under a confidential order of the court
- Acts or behaviour occurring in a bedroom, even when the room is shared
The following were held not to give rise to an expectation of privacy, as they were too anodyne and not sufficiently intrusive to require protection:
- Passing references to friendships with members of the opposite sex
- Trivial details regarding shopping trips of a non-intrusive nature
- Historical and general remarks made about record companies
- Details of the location of a promotional video and of related telephone conversations between third parties
- Details of the panic and stress of her European tour, including details about Ms McKennitt losing her temper with one of her staff
Public Domain
The Court stressed that, even though Ms Ash's book had already been read by some people (and thus Ms McKennitt's privacy had already been infringed), further publication of the revelations to different people could still cause distress and damage to Ms McKennitt's emotional and mental well-being. The Court declared that it adopts a different approach when considering the protection of commercial secrets, as opposed to the protection of personal and private information. The latter is afforded much broader protection, in that a 'once-and-for-all approach' to publication of the information is not followed.
Public Interest
Sometimes private information can justifiably be published, as there is a 'public interest' in the information being disseminated. This justification can be invoked, for example, if someone has carried out illegal acts within their home, as the disclosure of such information would be in the public interest. Likewise, if the information 'sets the record straight' when someone has been deliberately misleading the public on a significant issue then publication can often be justified.
In the McKennitt case, the Court said that 'a very high degree of misbehaviour must be demonstrated' by the individual concerned, in order to trigger such a public interest justification for the information to be published. No such justification applied in this case.
Conclusion
The Von Hannover decision raised major concerns amongst the tabloid press and the publishers of 'celebrity' magazines. The feeling was that if the decision was observed in this country it would restrict their coverage of the conduct of the lives of celebrities and other public figures.
Whilst the Court in the McKennitt decision affirmed the broad principle set out in the Von Hannover decision, the facts of the cases were different. In the Von Hannover case the Court was concerned with photographs of a celebrity. In the McKennitt case the Court was concerned about words written about the celebrity.
Until a similar factual scenario to the Von Hannover case arises before the Courts in this country, it is too early to say for certain how an English Court would react (and thus what impact that decision would have on the behaviour of the media in this country). Needless to say, the warning signs now appear to be there for the media. It will be fascinating to see whether they heed them, or whether the English Courts will be required to intervene in their methods of conducting business.
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.
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