Human rights barrister GEOFFREY ROBERTSON gives a stark warning after Meghan’s attack on the Press 

Meghan Markle declared the win a precedent, right after last week’s appeals court ruling against The Mail on Sunday – although the court made an effort to make clear it was not a precedent at all.

Appeals court judges ruled that this newspaper’s decision to publish half of a letter from Meghan to her father was indeed a violation of her privacy, she claimed. However, her “win” was merely an application of laws that had been “developed” – in fact, by judges over the past 15 years. This is important.

This case drew attention to a dangerous increase in judges’ restrictions on freedom of expression that increasingly prevent our society from holding the rich and powerful to account.

These laws have troubling implications for freedom of expression, and in this case they were applied after a “swift judgment”, ie without a proper trial where facts and evidence will be closely examined. Now there are high demands that Parliament step in to strengthen our protection of freedom of expression.

The first law to protect privacy came in 1360, before the invention of printing, to punish people who “listen under walls and windows, or in the friezes of the house… to frame slanderous and malicious tales.”

These eavesdroppers were considered a common nuisance, laying in stockpiles and pelted with rotten eggs.

However, her “win” was merely an application of laws that had been “developed” – in fact, by judges over the past 15 years. This is important, as Jeffrey Robertson writes

The right to privacy did not exist in common law England until 1998, when the Blair government adopted the European Convention on Human Rights into British law.

Article 8 (framed after World War II to stop raids of the kind carried out by the Gestapo) stated that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, which is what Meghan relied on in her lawsuit against The Mail on Sunday.

However, Article 10 of the same convention states that “everyone has the right to freedom of expression.” I suppose these two rights were in conflict?

At the time, it was argued that the courts should apply a presumption in favor of free speech – that the two rights should not be weighed against each other – and this eased media concerns.

By 2005, the courts had rejected this perfectly reasonable approach in favor of giving “privacy” an equal value to freedom of expression.

The judges were required to perform a balancing act, ‘balancing’ – inevitably, according to their own values ​​- the importance of each right as it applied to the facts of the case.

And so the rich and famous were handed a new legal weapon that was relentlessly taken up by a lawyer

And so the rich and famous were handed a new legal weapon that was relentlessly taken up by a “reputable” lawyer. The problem, of course, is that these two rights cannot be “balanced” at all

And so the rich and famous were handed a new legal weapon that was relentlessly taken up by a “reputable” lawyer. The problem, of course, is that these two rights cannot be “balanced” at all.

Judges, for example, generally exclude any “right” to amusement or entertainment, or even a “right” to enjoy the hypocrisy of public figures. Instead, they solemnly chant that “the public interest should not be confused with what is of interest to the public” – a mantra that usually enables them to rule against tabloids.

This newly developed law had a serious impact on public interest reporting. There has been a recent upsurge in threats against publishers and human rights organizations from lawyers in London who provide their services to foreign individuals who fear allegations of corruption or human rights abuses.

The truth is not a defense of the privacy claim, and the cost of fighting the measure is a serious deterrent to exercising the “right” to free speech. Moreover, the right to privacy is not just a personal right, but it is uncertain and unpredictable.

For example, the appeals court said The Mail on Sunday could have avoided liability by publishing only one paragraph of Meghan’s father’s letter. But which paragraph? Any selection would open the editor to the responsibility of “cherry-picking”, and where documents are concerned, it may be important to see it entirely in context.

For example, the appeals court said The Mail on Sunday could have avoided liability by publishing only one paragraph of Meghan's father's letter.  Pictured: Megan and her father

For example, the appeals court said The Mail on Sunday could have avoided liability by publishing only one paragraph of Meghan’s father’s letter. Pictured: Megan and her father

Then there’s the question of whether the message is really private in the first place. Since there was no trial, the evidence was never tested. This approach places the judge at the head of the editor – a position that judges have always refused to take on very good grounds in libel cases.

Meghan’s campaign against the media will have little traction in her preferred residence, as the First Amendment to the US Constitution (passed out of hostility to British sedition laws) prohibits the enactment of any law infringing on media freedom.

There are privacy laws in the United States, but to avoid violating the First Amendment, they focus on massive invasions without informative benefit, such as publishing medical records.

Their big debate over privacy will come in a different context next year, when a Supreme Court full of Trump appointees is likely to overrule a woman’s right to have abortions, on the grounds of her right to privacy.

Their big debate over privacy will come in a different context next year, when a Supreme Court full of Trump appointees is likely to overrule a woman's right to have abortions, on the grounds of her right to privacy.  Pictured: Protest against the Supreme Court hearing in Roe v. Wade

Their big debate over privacy will come in a different context next year, when a Supreme Court full of Trump appointees is likely to overrule a woman’s right to have abortions, on the grounds of her right to privacy. Pictured: Protest against the Supreme Court hearing in Roe v. Wade

Meghan might be more usefully defending this right in the US than continuing her courtroom crusade against the UK media.

Should Parliament intervene and define privacy in a law?

This solution is attractive, but ignores the difficulty of identifying the myriad of real-world situations that could lead to a claim.

The reformists should pay attention to what they wish for: the representatives are concerned with themselves. No class would like a more zealous law to cover up Piccadilo.

Any laws they enact would stop future posting of photos of Matt Hancock violating his own rules by cuddling a lover “in the privacy of his office”.

The best way forward – which could be taken by Parliament or the Supreme Court – is to return to the situation where the right to freedom of expression enshrined in Article 10 of the Convention has a presumption in its favour over the right to privacy enshrined in Article 8.

Finding a balance between two incomparable rights is impractical and subjective.

Instead, we should focus on the real question of whether the defendant crossed the red line: inhumanity.

This doesn’t mean we have to go back to a time when privacy rights didn’t exist. It is a necessary protection of citizens from the unfair cruelty and demonization of the media. But it should be limited to cases in which victims are entitled to compensation.

The growth in privacy claims is just one aspect of the laws that increasingly annoy investigative journalism, invoked by a growing breed of lawyers promising the rich and famous to restore their often exaggerated reputations.

Even national newspapers are struggling to pay the steep legal costs of setting up a defence, not to mention the small publishing houses and human rights organizations that strive to expose abuses and corruption abroad but are threatened with bankruptcy by the prospect of legal reprisals in London.

Increasingly, Britain is arguably not a country with free speech – it has costly rhetoric.

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