Are future freedoms of expression under threat?
Media leaders
Raymond Snoddy outlines why an appeal to the Supreme Court following the Duchess of Sussex’s latest privacy victory is vital for protecting free speech.
As a matter of necessity, and for the future of freedom of expression in this country, the Daily Mail and General Trust should appeal to the Supreme Court over their latest legal loss to Meghan Markle, the Duchess of Sussex.
They may well lose again, before the argument that for privacy and copyright reasons the Mail on Sunday should not have had the right to publish half of a letter Markle wrote to her father Thomas, even though it was almost certainly Thomas Markle himself who leaked it to the press.
The main reason why an appeal is vital is because the three judges of the Appeal Court rather airily brushed aside the need for a full hearing, with full disclosure of documents and the right to cross-examine witnesses.
In the end “a summary judgement” was applied. How terribly convenient for the Duchess of Sussex that, as a result, she will not have to give evidence, nor have it properly tested in court.
There is the additional irony that in her native United States, any attempt to bring such as case would have fallen instantly before the might of the First Amendment of the US constitution that protects freedom of the press almost without exception.
The spokesman for the Appeal Court judges Sir Geoffrey Vos, the Master of the Rolls, blithely accepted that Meghan Markle has shown “an unfortunate lapse of memory” when she claimed she had not co-operated with the authors of a book about her.
In fact, the Court of Appeal was told that Jason Knauf, former communications secretary to the Duke and Duchess, had briefed the authors of the biography Finding Freedom – Omid Scobie and Carolyn Duran.
The unfortunate lapse of memory led to a Meghan Markle apology for initially misleading the court.
At the very least, it can be argued that there are clear limitations to the Duchess of Sussex’s desire to enjoy a totally private life, a trend underlined by long television interviews with Oprah Winfrey.
There should be a full hearing because of the implications of the case for freedom of expression.
As distinguished lawyer Mark Stephens, with decades of experience in the area told The Times, the judges “had moved the goal-posts to where it is up to the Duchess to decide when and where something should be published.”
Stephens predicted that we will now get “more primped and preened glossy versions of celebrities and the famous- and that those who want to publish the unvarnished truth about them will find it more difficult to do so.”
The underlying problem goes back to 1998 when the Blair government decided to incorporate the European Convention on Human Rights into English law.
Two of the rights are contradictory. Article 8 declares that everyone has the right to respect for his private and family life, his home and his correspondence.
Article 10 proclaims that “everyone has the right to freedom of expression.”
As Geoffrey Robertson QC pointed out in the Mail on Sunday at the time, to ease media concerns over what would happen when there was a clash of the two rights, it was said that the courts should apply a presumption in favour of free speech. The two rights were not to be weighed one against the other.
Since then, as Robertson explained, a succession of judges have in effect created new law by tilting judges in the direction of privacy and generally excluding any “right” to amusement or entertainment, or even to enjoy the hypocrisy of public figures.
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Truth is no defence to privacy claims these days and individual judges like to say that the public interest is not the same as what interests the public.
The new judge-led privacy law, beyond anything that Parliament intended, is already having a chilling effect on reporting because of the huge legal costs of defending cases and the uncertainty of where the law now lies.
“Increasingly, it may be said that Britain is not a country which has free speech – it has expensive speech,” Robertson argued.
The Master of the Rolls insisted, as indeed have other judges in the past, that they are not creating a precedent, merely ruling on the narrow point of law in the cases before them.
Except that in the real world such judgements, one upon another, do indeed create the very precedents their authors deny.
That is why it is right that the Supreme Court should look in detail at the serious issues involved and not allow them to be batted away so insouciantly.
Presumably any decision could involve the case going back to the original court for a full hearing, with full disclosure of documents and witnesses properly examined.
It may be that the Duke and Duchess of Sussex have celebrated a bit too soon and too exuberantly with the claim that their victory would help “to reshape the tabloid industry.”
If the Supreme Court does nothing, or is unable to do anything under present law, then protecting free speech in the country becomes a matter for the Government and possible legislation.
The signs are that the Government is prepared to change the law to redress the current imbalance between the competing rights of privacy and free speech in favour of free speech.
An anonymous Cabinet minister told the Daily Mail that judges have created a privacy law, something which Parliament never voted for.
“If this is what the law says then it needs to change. It feels like we have judge-invented law. It draws on laws passed by Parliament but it is not what Parliament ever intended,” the source said.
The law, whatever it is, must, of course, still apply to everyone, whoever they be, and that includes the Mail on Sunday, the Prime Minister and Downing Street civil servants.
Despite the embarrassing circumlocutions of politicians, it is clear that a Christmas Party was held in Downing Street on 18 December 2020 in blatant breech of the lockdown rules in place at the time. ITV’s exclusive video showing senior No 10 staff joking about holding a Christmas party – days after one was held there during lockdown just makes everything immeasurably worse. It’s time to identify and fine everyone involved and if journalists were in attendance that applies to them too.
Congratulations to the Daily Mirror for exposing the hypocrisy of those partying while others died alone, and for continuing the pursuit.
Praise also for The Times and ITV for revealing just how organised and planned the breech of the rules was – complete with Secret Santa presents for one and all.
Meanwhile Happy Christmas to Prince Harry, Meghan Markle, the judges of the Appeal Court and all the law-breakers inside 10 Downing Street.
Raymond Snoddy is a media consultant, national newspaper columnist and former presenter of NewsWatch on BBC News.
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