The Ash-McKennitt Privacy Lawsuit That Went Very Badly For UK Freedom Of Expression Is A Wakeup Call That The Media Everywhere Needs A System To Get Involved In Such Important Cases At The First Stage – The Appeals Level Is Too Late
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Philip Stone February 1, 2007

The privacy lawsuit won by Canadian folk singer Loreena McKennitt against a former friend and colleague, Niema Ash, claiming Ash’s book contained personal details that were an invasion of privacy has rocked the UK media with lawyers and editors fearing it is the end of “kiss and tell” celebrity stories. . Yet how this case actually made privacy law in the UK should come as a shock and wake-up call to the media worldwide that it needs to get its legal protection house in order.

For according to Niema Ash, who has corresponded with ftm via e-mail, she had no legal representation in the original high court proceedings that were held in private (to protect that details in the book that McKennitt complained about were not aired in public). Thus significant legal case history has been made by the complaining party being represented by seasoned lawyers who specialize in privacy law who were up against an author with no legal representation who had never before even been in a high court chamber.

It was not until the initial judgment was handed down and the media had a chance to digest the damage done that Nash secured the services of renowned media lawyer David Price and organizations such as Times Newspapers Ltd, the Press Association, and the BBC asked to intervene and the Publishers Association wrote to the Appeal judges. But all of that was too little, too late.

As Nash told ftm, “We were unable to contest the ‘finding of fact’ which was very influential in determining the outcome of the appeal. The appeal judges hardly dealt with David Price’s excellent arguments or the arguments presented by the media, book publishers association, association of journalists, etc. They seemed intent on turning (Judge) Eady’s judgment into case law.

Where were all  those media organizations for the original high court proceedings? “Part of the problem was that I discovered I had to defend myself several days before the trial against one of the top barristers in the country because I had run out of money. I had never been inside the High Court let alone defend myself there for a seven-day trial.

“Had I proper representation the outcome probably would have been very different and the “finding of fact” would certainly have been different.”

David Price is taking the case to the country’s highest appeal court, The House of Lords.

“I also want to say that my book revealed no great secrets about Ms. McKennitt’s life. Some very trivial details were injuncted, for example, something equivalent to the fact that she had taken aspirin for a headache.”

Well, here we need to put a little distance between us, because according to the rulings of the court Ash did in fact release very personal, intimate details about McKennitt that McKennitt had only told to someone who she felt she could trust and was a close confidant. To quote from the Chief Appeal Judge:

“It is clear from a number of quite explicit passages in the book that Ms Ash realised that substantial parts of  (the book), at least, would fall within the scope of a reasonable expectation of privacy or a duty of confidence. Mr Browne (lawyer for McKennitt) drew a number to my attention. At the beginning of the book, for example, Ms Ash actually describes an ‘intimate relationship of almost 20 years with an unfledged small town girl’. She also announces to readers that she will be ‘releasing personality frailties previously concealed in the protective cocoon of anonymity’. It is obvious that she was only able to do so by reason of the “intimate relationship.’”

Later the judge wrote “On page 18, Ms Ash records that Ms McKennitt “confided to me” information about her London friends – which she then proceeds to reveal. Likewise, on page 84, she sets out another piece of information which she expressly states was ‘confided to me’. The tit-bit in question may not be of particular significance, but it does illustrate that Ms Ash was well aware that some material was imparted to her in the context of a close friendship and that she is, nevertheless, prepared to reveal it in order to attract readers. The point is again emphasized on page 93, where she states, ‘She cared for us and we cared for her. We were her closest friends and she knew she could count on our unqualified loyalty’. That is, of course, a fundamental aspect of Ms McKennitt’s complaint.”

And out of such a case about a former friend writing a book about someone who trusted her comes privacy law that affects the very fundamentals of what the media can and can not report upon.

One would think that such a case would ring alarm bells throughout the industry before the case ever made it to the High Court. But, no, here is the defendant saying she had no money and therefore no legal representation and therefore it’s not surprising it’s a KO against the media at large.

Something seems very wrong with that. Does not the media keep tabs on privacy cases that are to appear before the High Court, or does it think it only needs to take a look if it involves working media as opposed, say, to a book. – one would think journalistically that the media monitors high court proceedings – isn’t that part of their job?

Whatever the cause, this case seems to have slipped between the cracks. Very costly cracks to freedom of expression which in this particular case it is specifically said to take a secondary precedence to the right to privacy.

Whether it’s the media, or their legal counsel, someone has let the side down. How could such a case be allowed to go to court without proper legal defense?

If there is not a system in place to catch such potentialities, then there should be. Everywhere.

ftm Follow Up & Comments

House Of Lords Refuses Privacy Appeal - April 5, 2007

The House of Lords, the UKs highest court, has refused to accept an appeal by author Niema Ash who wrote a book about Canadian folk singer Loreena McKennitt that included material the lower courts ruled was private and therefore the book should not be distributed.

The House of Lords said it did not accept the case because it “did not raise an arguable point of law of general public importance.”

That means the basic point of the lower court stands and that the media and authors need to be careful in their kiss and tell stories in future because the Ash case has set precedent in the UK that everyone has the right to expect privacy in one’s private life, even if one is a celebrity.