Invasion of privacy

McKennitt v Ash [2005] EWHC 3003 (QB); NLJ 3 February

Loreena McKennitt is a famous Canadian folk singer. Her former friend, Niema Ash, wrote a book about her. The claimant complained that 34 specific episodes in the book amounted to breach of confidence or invasion of privacy, or both. The book contained intimate descriptions of the claimant’s reaction to her fiancé’s death in a boating accident, descriptions of her home in Ireland, and of her lifestyle there. Other incidents related to shopping trips, experiences on tour, and various visits between the parties. There were also references to friendships with various men. In applying article 8 of the European Convention on Human Rights, the judge quoted the observation of the ECtHR in Von Hannover v Germany (Application 59320/00) [2004] 40 EHRR1: ‘The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the publications make to debates of general interest. It was clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to her private life.’ The judge emphasized that there had been a significant shift between freedom of expression for the media and the corresponding interest of the public to receive information on the one hand, and an individual’s legitimate expectation to have their private lives protected on the other. The judge found that the details of the claimant’s emotional reaction to the loss of her fiancé were ‘remarkably intrusive and insensitive’ and that the right to respect for one’s home under article 8 requires that even relatively trivial details fall within the obligation of confidence, such as the décor, the layout, the state of cleanliness, how the occupiers behave inside it, or what they say. He continued: ‘To convey such details without permission to the general public is almost as objectionable as spying into the home with a long-distance lens and publishing the resulting photographs.’ The judge granted an injunction against future publication of the book in its existing form and awarded £5,000 damages for hurt feelings.