Ash wrote a book about time spent with her
then-friend McKennitt, who is a Canadian singer and songwriter
famous for guarding her personal privacy. Called Travels With
Loreena McKennitt: My Life As A Friend, it was the subject of an
unsuccessful injunction against publication filed by McKennitt.
When McKennitt could not prevent publication
of the book, she took an action relating to certain passages in the
book alleging breach of confidence. There is no statutory law of
privacy in England, but a breach of confidence is actionable.
The High Court's Justice Eady agreed to block
the publication of the passages complained about. They related to
McKennitt's personal and sexual relationships; her feelings after
her fiancé died in a boating accident; information on her health
and diet; information on her emotional vulnerability; and details
of a property dispute.
The petition for the right to appeal to the
House of Lords says that if the Court of Appeal judgment were
allowed to stand it would severely limit what the public will be
allowed to read by limiting the disclosure of private information
only to those cases deemed to represent a debate of public
importance.
It says that the ruling could allow famous
people to control their image for their own benefit by using the
law to keep unwanted revelations from the public domain. "The
reality in so many of these cases is that the claimant's primary
concern is that the allegedly private information portrays him in a
negative light," it says.
"There may be different opinions about where
the balance should be struck between freedom of expression and the
protection of privacy. But it is clearly a matter of general
importance," says the petition, according to the PA news agency.
"Where the balance has been significantly tilted in favour of
privacy by judicial intervention, as is the effect of the judgments
of Mr Justice Eady and the Court of Appeal, the consequence is to
deprive the public of the opportunity to receive information that
it would otherwise wish to receive, without the intervention of
Parliament. That is a matter of some significance and is worthy of
consideration at the highest judicial level."
The McKennitt case is a vital element in a
growing body of case law which could result in England having an ad
hoc privacy law. It is based on Articles eight and 10 of the
European Convention on Human Rights (ECHR), which are "shoehorned"
into English law in the creation of the tort of breach of
confidence, said Lord Justice Buxton, the Court of Appeal judge who
backed the High Court's original verdict.
Any House of Lords hearing would give clarity
and finality to one of English law's fastest developing and
therefore unstable areas.
Prince Charles was at the centre of a case
surrounding private notes he circulated to some close friends and
advisers. He won his case to keep the notes out of the newspapers.
Catherine Zeta Jones and Michael Douglas are involved in a case
related to their wedding photos which has also, so far, backed
their privacy.
