Should we fear privacy law?

AN EMERGING law of privacy may make journalists' jobs more difficult - as demonstrated by rulings in a case brought by a Canadian musician against a former employee - but concerns over effects on legitimate news- gathering may have been overstated.

Loreena McKennitt may not be a household name in the UK, but the Canadian singer and composer is big news globally. When a friend and former employee, Niema Ash, privately published Loreena McKennitt: My Life as a Friend in 2005, McKennitt took action to prevent the book being distributed. At issue were sections concerning a property deal which precipitated the end of Ash's and McKennitt's friendship, and McKennitt's reaction to the death of her fiancé.

McKennitt claimed that the book breached her privacy. The case reached the High Court late in 2005, where Mr Justice Eady agreed with the musician. After losing again in the Court of Appeal in 2006, Ash petitioned the House of Lords for the right to a further appeal, supported by submissions from the BBC, News International and the Telegraph Group, who all argued that upholding Eady's decision could have dire implications for press freedom. But the Lords refused Ash leave for further appeal in March this year. A revised version of the book is the subject of ongoing litigation.

Some commentators suggest that the case effectively enshrines a UK privacy law. It follows the European Court of Human Rights ruling that pictures of Princess Caroline of Monaco taken in public may still be considered private. But the impact on journalists who keep in mind their duty to report what is in the public interest, and to source their stories, should be minimal.

Some aspects of the McKennitt case hinged on the fact that Ash had been an employee, covered by a contract of confidentiality. Eady rejected the claim that this agreement could be broken in the public interest, to highlight supposed hypocrisy. The judgment also determined that parts of Ash's book were false.

The McKennitt case and similar recent cases firm up a set of principles on the individual's right to privacy. But these seem to offer few impediments to responsible journalists. Writers of kiss and tell-type pieces, including those about non- celebrities, will have to tread carefully - many sexual or otherwise intimate encounters may now be protected, especially if their publication is more likely to entertain than to contribute to a public debate.

Rumours of the demise of proper investigative journalism have been exaggerated. The ground rules remain the same: conduct meticulous research, rely on attributable, on-the-record quotes and ensure there is a genuine public interest in publishing the story you are writing, and the law will still be on your side.

  • The NUJ has negotiated an insurance policy for members that covers costs of defending cases brought against freelances for libel and slander, infringement of copyright, breach of confidentiality, negligence, and liability to the public. See www.imaginginsurance.co.uk/writers.html
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