Ash wrote 'Travels With Loreena McKennitt: My Life As A
Friend', but publication was halted when McKennitt won an
injunction relating to certain passages in the book on the grounds
that it violated her right to a private life under the European
Convention on Human Rights (ECHR).
McKennitt won cases in the High Court and Court of Appeal. Ash
sought permission to appeal to the House of Lords. That permission
has now been denied.
"I am very grateful to the courts, including the House of Lords,
the Court of Appeal and Mr Justice Eady who have recognised that
every person has an equal right to a private life," McKennitt
said.
"If an aspect of a career places one directly in the public eye
or if extraordinary events make an ordinary person newsworthy for a
time, we all still should have the basic human dignity of privacy
for our home and family life," said McKennitt.
The case is one of a handful of trials which look to be setting
precedents for what is becoming effectively a privacy law.
Traditionally there has been no right of action for breach of
privacy in England. However, in recent years the privacy of famous
people has been protected by stretching the existing tort of breach
of confidentiality to accommodate the principle set down in Article
8 of the ECHR.
Everyone has the right to
respect for his private and family life, his home and his
correspondence.
It is upon Article 8 that recent cases, including McKennitt's,
have relied.
Prince Charles won a case recently preventing the publication of
notes he sent to friends relating to the handing over of Hong Kong
to China. The result from a House of Lords hearing in a long
running case over photo rights to the wedding of Hollywood film
star Michael Douglas and Welsh actress Catherine Zeta Jones is
being keenly watched as another possible source of an ad hoc
privacy law.
"The nub of Ms McKennitt's claim is that a substantial part of
the book reveals personal and private detail about her which she is
entitled to keep private," said Lord Justice Buxton in his ruling
in the Court of Appeal. "That claim is brought against the
background that Ms McKennitt is unusual amongst world-wide stars in
the entertainment business, in that she very carefully guards her
personal privacy."
The passages in the book to which McKennitt objected dealt with
her sexual and personal relationships, the death of her fiancé and
her feelings in the aftermath of the boating accident that killed
him, information on her diet, accounts of her emotional
vulnerability and information about a property dispute.
Ash's lawyers argued that she was entitled to publish her
account of the time she spent with McKennitt because it was her
experience as well as McKennitt's and her right to freedom of
expression, guaranteed in Article 10 of the ECHR, entitled her to
publish.
The Court of Appeal ruled, though, that the focus of the book
was McKennitt, not Ash, and that her rights prevailed. The House of
Lords reportedly said that the petition for appeal "did not raise
an arguable point of law of general public importance."
"The House of Lords' decision not to hear the case is
interesting," said Rosemary Jay, head of the Information Law team
at Pinsent Masons, the law firm behind OUT-LAW. "They said no, the
High Court and the Court of Appeal got it right and we are not
going to have any more of these silly claims where people say that
freedom of expression gives me the right to gossip about other
people when it has absolutely no value at all."
