Loreena McKennitt, Canadian folk singer and composer, has won her privacy action in the High Court. The judgment of Eady J is a significant decision concerning the extent to which the Court will protect the privacy of celebrities. Mark Thomson represented Loreena McKennitt.

Loreena McKennitt -v- Niema Ash, Key Extracts from the Judgment

Impact of Princess Caroline Case

(para 50)
A trend has emerged towards acknowledging a “legitimate expectation” of protection and respect for private life, on some occasions, in relatively public circumstances. It is no longer possible to draw a rigid distinction between that which takes place in private and that which is capable of being witnessed in a public place by other persons.

(para 52)
In that particular [Caroline] case, it so happened that the court was primarily concerned with “images containing very personal or even intimate ‘information’ about an individual”. The principles expounded, however, are not confined to information in photographic form.

(para 53)
Again, however, there is no particular reason to suppose that where intrusion takes place by means of publication to the world at large, the governing principles are confined to tabloid exploitation. One naturally recognises that the scale and character of tabloid publications can cause particular distress to people who come into the public eye by that means, but the principles according to which privacy rights are protected against intrusive publicity must be of more general application.

The modern approach to public interest

(para 6)
In the Princess Caroline case, the court drew a fundamental distinction between reporting facts capable of contributing to a debate in a democratic society, relating to politicians and the exercise of their functions, and reporting details of the private life of an individual who exercises no official functions. It is far less likely in the latter case that the press could ever be characterised as exercising its “vital role of watchdog”. The court continued:

“As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public …”.

It was recognised (at [67]) that the readers of popular newspapers are not entitled to know “everything” about public figures.

(para 57)
It is important for courts in the United Kingdom to take these considerations into account. It is clear that there is a significant shift taking place as between, on the one hand, freedom of expression for the media and the corresponding interest of the public to receive information, and, on the other hand, the legitimate expectation of citizens to have their private lives protected. … Even where there is a genuine public interest, alongside a commercial interest in the media in publishing articles or photographs, sometimes such interests would have to yield to the individual citizen’s right to the effective protection of private life. As Lord Woolf CJ observed in A v B plc [2003] QB 195 at 208 “… a public figure is entitled to a private life”. Moreover, just as the European Court was not prepared to acknowledge a bright line boundary between private (or secluded) locations and public places, so too there was recognition that the protection of private life “… extends beyond the private family circle and also includes a social dimension”.

Why should Ms Ash not be able to tell her own story?

(para 77)
Another general point which needs to be addressed is the fact that there are at least two persons involved. There is Ms McKennitt’s interest to be protected, although in a context in which Ms Ash herself (and sometimes also Mr Fowkes) had a direct role to play. The question is to what extent it is legitimate to protect one person’s privacy when another connected person has a right of privacy and also, correspondingly, a right to waive it in the exercise of freedom of expression: see e.g. Re Angela Roddy (A Minor) [2004] 2 FLR 949 at [35]-[38] and [46]-[60], per Munby J. This is why it is so important for me to have in mind the recent pronouncements in Von Hannover v Germany to the effect that protection of privacy will extend to relations with other persons and embrace a social dimension. It must follow, in broad terms, that if a person wishes to reveal publicly information about aspects of his or her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be crafted, so far as possible, to protect the other person’s privacy. This is important particularly, of course, in the context of “kiss and tell” stories. It does not follow, because one can reveal one’s own private life, that one can also expose confidential matters in respect of which others are entitled to protection if their consent is not forthcoming.

The relevance of inaccuracy

(para 78)
Mr Browne canvassed another point of general significance. Although there is no claim for defamation or malicious falsehood, Ms McKennitt has indicated, in respect of certain parts of the evidence, that the account which Ms Ash has chosen to give is untrue, distorted or misleading. It is not in my judgment, however, permissible to respond by advancing the somewhat simplistic proposition that a reasonable expectation of protection, or a duty of confidence, as the case may be, cannot arise in relation to false allegations. As I observed in the case of Beckham v Gibson, 29 April 2005 (unreported), the protection of the law would be illusory if a claimant, in relation to a long and garbled story, was obliged to spell out which of the revelations are accepted as true, and which are said to be false or distorted: see also W v Westminster City Council [2005] EWHC 102 (QB), Tugendhat J.

Public Domain

(para 81)
In the latter context, judges are ready to take a once-for-all approach, since information is either secret or it is not. In the light, especially, of remarks by Lord Keith in Att. Gen. v Guardian Newspapers (No.2), at page 260, there are grounds for supposing that the protection of the law will not be withdrawn unless and until it is clear that a stage has been reached where there is no longer anything left to be protected. For example, it does not necessarily follow that because personal information has been revealed impermissibly to one set of newspapers, or to readers within one jurisdiction, that there can be no further intrusion upon a claimant’s privacy by further revelations. Fresh revelations to different groups of people can still cause distress and damage to an individual’s emotional or mental well-being.

The public interest argument

(para 97)
I would nevertheless accept that Mr Browne is broadly correct when he submits that for a claimant’s conduct to “trigger the public interest defence” a very high degree of misbehaviour must be demonstrated. Relatively trivial matters, even though falling short of the highest standards people might set for themselves, will not suffice. All of us try to behave well, no doubt, for most of the time but hardly anyone succeeds in achieving that ideal. The mere fact that a “celebrity” falls short from time to time, like everyone else, could not possibly justify exposure, in the supposed public interest, of every peccadillo or foible cropping up in day-to-day life.

(para 101)
Mr Browne, quite properly, drew Ms Ash’s attention to the Court of Appeal’s decision in Woodward v Hutchins [1977] 1 WLR 760 because, at least superficially, it might tend to lend some support to her case in this respect. On the other hand, he pointed out that the decision was given ex tempore after two hours of argument late one evening. Furthermore, it has met with criticism from various quarters over the last few years. It is interesting to note, for example, the observation of Gummow J in SK & F v Department of Community Services [1990] FSR 617, 663:

“… An examination of the recent English decisions shows that the so-called ‘public interest’ defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence”.

However courteously expressed, English judges need to take careful account of criticisms of that kind, not least in the light of Article 7 of the European Convention and the general desirability that the law, in so far as it permits infringements upon Convention rights and, in particular, those under Article 10, should be declared with as much certainty and precision as possible. Citizens need to be able to regulate their conduct, if necessary with the advice of lawyers, so as to be able to appreciate the potential legal consequences of what they are doing or saying. In this field especially, it is important for the applicable principles to be stated with reasonable clarity.

Summary by
Mark Thomson



Loreena McKennitt -v- Niema Ash, Summary of Judgment Handed Down on Wednesday, 22 December 2005

21 December 2005
After publication, in Summer 2005, of the book “Travels with Loreena McKennitt” written by Niema Ash, Loreena McKennitt, the internationally renowned Canadian folk singer and composer, took proceedings to restrain further publication of the book. On 7 October 2005 a temporary undertaking was provided by Ms Ash pending a speedy trial, which was heard on 21 November to 29 November, in private.

Mr Justice Eady today granted an injunction restraining further publication of certain private information and awarded £5,000 in damages.

The Judge decided, following the recent Princess Caroline Judgment in the European Court of Human Rights (Von Hannover v Germany):

(a) that all persons, including those in the public eye, are entitled, to significant protection of privacy, not just in relation to photographs but also other information;

(b) that disclosure of information of relationships with others can be protected even if this occurs in public and even if the other person asserts his/her right of free speech;

(c) that truth or falsity of the private information is not relevant;

(d) that the public interest defence should be subject to careful scrutiny and requires a high degree of misbehaviour and not “mere peccadilloes of celebrities”;

(e) in matters of privacy the Courts should be slow to allow public domain as a defence, and it is permissible to allow a controlled release of private information.

Mark Thomson

News arrow-right-alt