Harry and Meghan: a conflict of rights


Freedom of expression and privacy


The latest in the story of Prince Harry and Meghan Markel (the ‘Sussexes’) and their aim to carve out new roles as hybrid royals part prompted by their tribulations of dealing with the British media (for the latest see here). Involvement with the press – and in this context I think mostly of court proceedings – comes in a variety of forms (eg photographs, promoting you own story, protecting your privacy, details of family proceedings etc). It affects ‘celebrities’ disproportionately (though as Naomi Campbell’s case (see below) shows, it can be said they asked for it – mostly). It can affect us all: parents and children in care proceedings; anyone investigated by the police or involved in interesting (to the press) open court proceedings; and even some private proceedings case.


English law on press freedom and privacy are derived from the common law, prompted by European Convention 1950 Arts 8 (‘respect for private and family life’: ie privacy) and 10 (freedom of expression: ie publicity). To act for a ‘celebrity’ (silly expression, but convenient short-hand; or ‘figures of contemporary society “par excellence”’ of a Monacan royal family member (see below)) will be rare for most lawyers. However, the balance – the conflict – between privacy and media freedom of expression arises wherever the media take an interest; but an individual affected wants to keep a case private (see discussion in the ‘three way sex’ case: PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251; or the photographing of JK Rowling’s child: Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481).


Privacy and the common law


A law of privacy was more or less unknown to the common law till the early 21st Century (Kaye v Robertson [1990] EWCA Civ 21) a case which, said Bingham LJ, ‘highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens’. Then, after the incorporation of Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) into English law by Human Rights Act 1998 in October 2000 a trio of cases in 2004 sealed a common law concept of privacy and showed how it might develop on issues of privacy.


First was in the House of Lords in Naomi Campbell’s case (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457). The common law began to feel its way towards a concept of privacy. Privacy could be actionably invaded by the media. Campbell recovered modest damages for the privacy invasion by the Daily Mirror.


Six weeks later, privacy principles were explored in Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 where the extent of the media’s freedom to interfere in a person’s private life was defined. Publication of photographs of the Monacan royal family member, Von Hannover, and her private life, by an invasive press were not permitted, said the European Court of Justice. The court said:


[23] …. even figures of contemporary society ‘par excellence’ were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos….


The ‘ultimate balancing test’


The lead case on the balance between competing Convention rights followed (and as can be seen, those involved – a parent and child in care proceedings – were by no means (but perhaps for that case) ‘celebrities’. The case was on the cusp between criminal and family proceedings, namely Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. Should the name of a mother who was being prosecuted for murder of her child be anonymised for the sake of S, another child of hers? No, said Lord Steyn. Freedom of expression trumped privacy of the mother.


For general application of the Arts 8 and 10 balance (and any other Convention rights in the mix, the test a judge must apply to each case’s facts is, said Lord Steyn, as follows:


[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.


And still Lord Steyn’s test is the golden metwand by which Convention rights are determined in a variety of proceedings where rights appear to conflict.


Spencer and media involvement in family proceedings


Five years after all this, Prince Harry’s uncle (Princess Diana’s brother) found himself being required to conduct his matrimonial financial relief proceedings in front of the media, in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416. The rules for admission of media to family proceedings (now Family Procedure Rules 2010 r 27.11(2)) had recently been changed at the time. Munby J had sympathy with Countess and Earl Spencer, but said that there was nothing exceptional about the facts of their case which could justify him in ordering exclusion of the media. The couple settled the case overnight, so the press had no hearing to report.


Royal family members, privacy and publicity on marriage breakdown (any privacy problems of the Sussexes has nothing to do with marriage breakdown) coalesced in Prince of Luxembourg v Princess of Luxembourg [2017] EWHC 3095 (Fam), [2017] 4 WLR 223, [2018] 1 FLR 480 (to provide an abbreviated title to the case). The media had painted Princess Tessy as a gold digger. She wanted to be able to respond to this by explaining the content of her negotiations to settle her financial relief claim. One area of family breakdown which is totally out of bounds for publicity, is court negotiations for settlement; so even to put Tessy’s story right, Macdonald J said the press could not publish the private aspects of the negotiations.


Most of these cases refer to people on a different plane of notoriety than most clients; but the principles – say in relation to care proceedings or parties’ difficulties with local authorities or government departments or health authorities – are the same. Where there is an issue on freedom of expression the Re S balance must be examined and struck – one way or the other. Privacy and freedom of expression must be carefully balanced.

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