The House of Lords today refused an author permission to appeal a ban on her book, ending a case that will be seen as a landmark in the development of an English privacy law.
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.
Article 8.1, European Convention on Human Rights
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."
