Judges have created far-reaching privacy laws that have eroded free speech in favour of the “over-valued reputations of the rich and famous”, it was claimed on Thursday night in the wake of the Duchess of Sussex’s legal victory against the Mail on Sunday.
The Court of Appeal ruling - that prevents any evidence from being tested in the courts - was greeted with a chorus of disapproval from politicians, human rights lawyers and even a senior judge.
Associated Newspapers Limited, publisher of the Mail on Sunday, said on Thursday night it would now consider a further appeal to the Supreme Court in its determination to have its day in court.
Legal experts were sceptical that Britain’s highest court would be prepared to hear the case and suggested the newspaper’s final recourse would be to the European Court of Human Rights in Strasbourg instead.
One lawyer said that the irony of such a move would not be lost on the Duchess, since the basis on which has won her case - her right to privacy - was first enshrined by the European Convention on Human Rights and later adopted by Parliament under the Human Rights Act.
Judges are now accused of giving far too much weight to an individual’s right to a private and family life - Article 8 of the European Convention on Human Rights - against Article 10’s freedom of expression.
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The result, argue critics, has been a privacy law by the back door that has seen celebrities obtain super-injunctions and Max Mosley, a one-time fascist and son of the notorious fascist Oswald Mosely, rewrite the rules with a landmark victory against the now defunct News of the World over its publication of details of his peculiar sex life and claims - dismissed by the court - of Nazi overtones.
A senior judge, who declined to be named, accused Parliament of failing in its duty to get involved.
“There is a strong case for rewriting the Human Rights Act on all sorts of constitutional grounds,” said the judge. “The problem with it is that it passed political decisions to judges which they ought not to have.
“But the Government is quite content with this. Parliament is never going to support a privacy bill because it doesn’t want to make enemies of the press and would rather leave the courts to do that. Why shove your faces into a wasps’ nest when somebody else is dealing with the matter?”
‘We don’t have free speech in Britain - we have expensive speech’
Geoffrey Robertson QC, Britain’s best-known human rights lawyer who first came to prominence during the infamous Oz freedom of speech trial 50 years ago, is damning of the encroaching laws.
“Privacy is now a growth industry,” said Mr Robertson. “The law has been developed - in fact, created - by judges.
“But instead of applying a presumption in favour of free speech, they purport to ‘balance’ it with often over-valued reputations of rich and famous litigants.”
The cost, he said, for newspapers and others of defending these actions is “horrendous” and warned it was “becoming a deterrent to public interest journalism”, adding: “As a result, in Britain we do not have free speech - we have expensive speech.”
Lawyers will pore over the legal consequences of the Duchess of Sussex’s win.
Mark Stephens, a media lawyer and partner at Howard Kennedy law firm, said the judgment had strengthened a celebrity’s right to “primp, preen and curate” their image, making it harder for the media in the future to write the “unvarnished rather than gilded truth” about a public figure.
The Mail on Sunday had argued that the existence of the letter and some elements of it had been placed in the public domain by friends of the Duchess and that it had been written knowing that it might indeed be made public.
An ‘unintentional’ oversight on the part of the Duchess
The Court of Appeal had also heard that the Duchess had misled the High Court over her recollection of information given by aides to the writer of an autobiography - an “unintentional” oversight for which she had apologised.
Such evidence, said Mr Stephens, should have been tested at trial - rather than summarily dismissed by Lord Justice Warby in the High Court and now three Court of Appeal judges, including Sir Geoffrey Vos, who as Master of the Rolls is head of the civil justice courts system in England and Wales.
If the Duchess and her backers had wanted heavy hitters to uphold her right to privacy she had them.
Sir Geoffrey Vos ruled in his judgment that the content of the Mail on Sunday articles was “manifestly excessive and, therefore, unlawful”, adding there was “no prospect of a different result being reached after a trial”.
He went on: “The interference with freedom of expression which this outcome represented was a necessary and proportionate means of pursuing the legitimate aim of protecting the Duchess’s privacy.”
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'Concerning consequences' for freedom of expression
Despite the weightiness of the judges presiding in the case, some media lawyers were left perplexed. “This is a troubling judgment which has very concerning consequences for freedom of expression,” said Matthew Dando, a partner at Wiggin law firm.
“By preventing key evidence being heard regarding the preparation of the Duchess’ letter and its intended audience, the Court of Appeal has presumptively elevated the Duchess’ privacy rights over matters of public interest and freedom of expression.”
He added: “This decision heightens concerns that privacy laws permit public figures selectively to determine what can be reported about them and manipulate the media narrative.”
Anybody trying to argue against the legal status quo may not now “even be entitled properly to test the claimant’s evidence in court”.
But will Parliament grasp the nettle?
“The problem of privacy and MPs is it would be turkeys voting for Christmas,” said Mark Stephens. “They don’t want their behaviour scrutinised. Privacy laws are a godsend for MPs whose private lives don’t match up to their public persona.”