Author Niema Ash has lodged a petition for leave to appeal to the House of Lords against the decision of the Court of Appeal upholding the judgment of Mr Justice Eady that her book was a breach of confidence and an infringement of the privacy rights of Canadian folk-singer Loreena McKennitt.
The 14-page petition, lodged on January 19 by David Price Solicitors and Advocates, which represented Ms Ash in the Court of Appeal, argues that the decisions by the lower courts represent “a significant shift in favour of privacy at the inevitable expense of freedom of expression”.
The two decisions had supported the claim by Ms McKennitt, whose “new age” Celtic music has sold 13 million albums worldwide, that Ms Ash, a former friend and employee, acted in breach of confidence by publishing and disclosing certain information in a 2005 book about her.
In 2005 Mr Justice Eady awarded the singer GBP5,000 in damages and an injunction banning further publication of certain identified passages in the book, entitled Travels with Loreena McKennitt: My Life as a Friend.
The passages covered personal and sexual relationships, Ms McKennitt’s feelings about her fianc?, who drowned in 1998, details of her health and diet, her emotional vulnerability, and information on a property dispute.
Ms Ash had denied she was bound by any duty of confidentiality, and argued that the information was so “banal, inconsequential or anodyne”
as not to have about it the “quality of confidence”.
The petition says that the decision of the Court of Appeal cannot be reconciled with the liberal approach of the Court of Appeal in A v B plc, which for all practical purposes had been overruled.
The media and publishing groups which had sought to intervene in the case were, it says, right to be worried about the effect of Mr Justice Eady’s judgment.
It warns that if the decision is left to stand, one result will be that the courts will issue more pre-publication injunctions, with wider effects.
The effect of the decision will be that publication of any private information about public figures will be allowed only if it makes a contribution to a debate of public importance, irrespective of whether the information is already in the public domain, this placing a significant limit on what the public is entitled to read, the petition says.
Another problem, it says, it that the case conflates defamation and privacy, which will also lead to more injunctions being granted to stop publications.
“The Court of Appeal judgment states in terms that whether the information is true or false is completely irrelevant to the question of whether it is private,” the petition says.
“But 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. If the claimant is able to obtain an injunction to restrain allegedly false information on the basis that it is private it will, in practice, be used to circumvent the rule in Bonnard v Perryman.
It will be virtually impossible at the interim stage to establish that the claimant’s ‘true’ claim is in defamation.”
It adds: “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.
“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.”