judgement challenges freedom of expression
Based on an article from The Guardian see
The courtroom struggles of two
Canadian women - one an international folk star, the other her former
close friend - have far-reaching implications for press freedom
Loreena McKennitt is a Canadian folk star and Niema Ash is a travel
writer who became a close friend of McKennitt until the friendship
In order to try to come to terms with
the collapse of their relationship - "a cathartic exercise" - Ash
decided to write a biography which she entitled Travels With Loreena
McKennitt: My Life as a Friend. To ensure control, Ash also arranged
to publish it herself.
Published in June 2005, the book is essentially about the nature of
celebrity, though it clearly dwells on intimate personal matters too.
McKennitt has given many interviews herself but had previously stopped
the publication of another book about her songs, citing her right to
privacy. So Ash cannot have been too surprised when she launched a legal
action to ban the book. She later reduced that to a demand that 38
separate sections be deleted, some of them as small as five lines.
But it was the cause of action that was so surprising. She did not sue
for libel, which is fairly normal in such circumstances, but claimed the
book breached her privacy.
An affronted Ash refused to accede to the demand and, having previously
armed herself with insurance, decided to fight the case. Once the
insurers' money ran out, its lawyers were forced to retire, and Ash
represented herself in the high court. It is impossible to know whether
Mr Justice Eady's decision would have been different if Ash had had the
benefit of an experienced barrister, but his ruling certainly astonished
the legal community.
In finding for McKennitt, and insisting that eight of the 38 instances
should be expunged, the judge tipped the balance away from freedom of
expression for the media, and towards the the legitimate expectation
of citizens to have their private lives protected.
He drew heavily on the controversial European court of human rights
victory by Princess Caroline of Monaco over pictures of her taken in
public. Eady decided that information does not forfeit its "private"
quality simply because it concerns events that could have been witnessed
in a public place or because third parties are involved. In other words,
authors cannot assert they have a right to freedom of expression if, in
telling their own life stories, they reveal information about someone
Now, following the refusal of the
House of Lords to hear a further appeal, it is possible to get to grips
with the issues. There is a possibility of a petition to the European
Court of Human Rights, but that has not deterred Ash from deciding to
talk openly about the case for the first time.
Ash has now published a new version of the book, deleting the offending
material but adding a chapter which deals with the trial. It was held
in private and I think that was grossly unfair, she says. As for
the judgment itself, let me just say that I believe it was seriously
But it's hard to see, from the available evidence, that Ash was anything
other than decent and fair and truthful. It isn't a kiss-and-tell
book, she says. It's about friendship and fame. It's my story,
and I should be allowed to tell it.