January 6

Prince’s right to privacy “unanswerable…overwhelming”; judges warn recalitrant newspaper

A few years ago, addressing an Australian  media conference, a leading privacy lawyer observed: “With apologies to Professor David Flint, while everyone had a right to privacy, members of the Royal Family are an exception.”  Of course I disagreed.  In my view, and notwithstanding ill-considered judicial legislation by the US Supreme Court, all public figures have a right to privacy.  (This right is protected by a mixture of legal and ethical rules, particularly those relating to the media.)  The view that public figures have a right to a private life is under attack, and not only in the more disreputable London press. (In a recent unauthorized biography of a well known and influential Australian broadcaster,  an ABC  journalist put up  the most convoluted and untenable arguments to justify the invasion of the broadcaster’s   private life, including the publication of rumour.  The book  was reviewed in The Australian and On line opinion  on 31 October 2006 and mentioned on the ACM site on 8 November, 2006.

As we noted on the ACM site on 30 June 2004, the London newspaper, The Mail on Sunday, is one newspaper which does not respect the privacy of members of the Royal Family.  It paid a valet sixty thousand pounds to tell a scandalous story against Prince Charles which was, predictably, repeated around the world. When the valet, clearly unstable, subsequently admitted the story was untrue, this hardly caused a ripple.  Then in 2005, The Mail on Sunday published extracts from the Prince’s private journal, “The Handover of Hong Kong, or the Great Chinese Takeaway” which related to the 1997 transfer of Hong Kong to the Peoples’ Republic of China. As we reported on the ACM site on 30 November, 2005, the journal was clearly intended to be private and confidential, and had only been sent to close friends. The newspaper had been warned, not once but five times, that if it published extracts al it would be in breach of the Prince’s copyright and the confidentiality to which he was clearly entitled. The newspaper ignored these warnings and went ahead and published extracts.  The Prince reluctantly sued.   Now, on 21 December, 2006, the England and Wales Court of Appeal has handed down its decision in  Associated Newspapers Ltd v Prince of Wales.  (For one who is occasionally guilty of not detecting spelling errors, there is an amusing one in the internet law report. I leave readers to discover that.)




The judges, not inaccurately described by Elsa McClaren in The Times  of  21 December, 2006,  as Britain’s “top judges” – the Lord Chief Justice of England  Lord Chief Justice Lord Phillips of  Worth Matravers , the  Master of the Rolls  Sir Anthony Clarke, and Lord Justice May –  delivered a scathing rebuff for those who think that when it comes to the Royal Family, the law can be broken with impunity.  The Prince’s case for privacy, they declared, was not only “unanswerable”, it was “overwhelming”.  This was an appeal by the newspaper against a decision in the High Court earlier in 2006. The original hearing created headlines around the world. The case  was not without surprises. One was when The Mail introduced, as its principal witness, Mr. Mark Bolland.  He had not only been the Director of the Press Complaints Commission, but he had then worked as the Prince’s deputy private secretary for five years.  The newspaper relied on his evidence  to support its spurious argument  that publication of the journals was in the public interest. This is of course the standard refuge of a prying press. 

Since leaving the Prince’s employ, Mr Bolland has revealed private matters concerning his employment to the press, including at least one hostile opinion piece. But as we noted on the ACM site on 22 February, 2006, Mr.Bolland had obviously been employed by the Prince because of his skill in dealing with the press.  He would surely have understood that part of his role was to protect the Prince from intrusions into his and his family’s privacy, a matter which had been of frequent concern at the Press Complaints Commission.  Yet the reported extracts of his statement did not seem to reflect this. You would have thought he was a mere passive employee who always acted on the instructions of the Prince, rather than being a trusted and confidential adviser.   Mr. Bolland  claimed the Prince of Wales sees himself as a "dissident" working against prevailing political consensus, whose self-appointed "campaigning role" was "constitutionally controversial" and had not "so far as I am aware, been endorsed either by the Queen or by Parliament."    He says it was "regarded with concern by politicians".   But as we reported on 26 February, 2006, this was denied by the Prime Minister, and polling supported the Prince’s right to speak out. In the meantime, Charles Moore, the distinguished former editor of the London Daily Telegraph expressed serious reservations about Mr. Bolland’s role: see the ACM site 26 February, 2006,  “Intrusion and betrayal”.

The Prince’s highly competent, and we should add – staunchly loyal – private secretary Sir Michael Peat dismissed Mr. Bolland’s claims. The Prince, he said, "avoids making public statement on matters which are the subject of disagreement between political parties".  "Speeches and articles are cleared beforehand with the relevant Government department. He does, from time to time, express views privately to Government ministers. He has followed the practice that such views can be expressed by the monarch and by privy councilors.  The Prince of Wales has not ‘bombarded’ ministers with his views but has written to them from time to time on issues which he believes to be important.  I am informed by him that he gave no instruction to draw the media’s attention to his failure to attend that banquet or to publish material critical of the Chinese government."

Given that only 14 copies of the Hong Kong Journal were sent to 21 recipients, counting husbands and wives as one, and all had given assurances that  they had respected the confidentiality of the document, how had the newspaper obtained the journal?  The answer to that was another surprise. The newspaper’s behaviour had been even more reprehensible than previously thought.  As we reported on the ACM site on 26 February, 2006 , a former employee –dismissed for other reasons – had made copies of some extracts from the journals.  Thinking them amusing  and worth publishing one day, she took them home.  With a view to selling them, she asked a friend to approach The Mail on Sunday. The newspaper had been given "about 50 pages." But her lawyer then warned her not to sell.  So her friend  asked the Mail to return them but  the newspaper had refused. Not only did The Mail receive stolen property, it refused to return it. Our view, expressed on the ACM site was that it was inconceivable that The Mail on Sunday’s palpably sham defence of acting in the public interest could possibly stand. So we were delighted to report on 18 March, 2006 that the High Court judge Mr. Justice Blackburne  had  ruled, the day before, that the Mail on Sunday had broken the law in publishing the extracts. The judge said it was open to the Prince to claim for damages in respect of the Hong Kong journal and an injunction to prevent further infringement of his copyright.

The newspaper sought leave to appeal, which was granted. In the meantime we said there were two absolutely appalling aspects about this case. One was the willingness of employees to betray confidences, and not only in the theft of the journals. As one legal writer asked, how was it that Mr.Mark Bolland, the former deputy secretary, came to give evidence against the Prince, his former employer?  The other was the willingness of the newspaper to keep, copy and use stolen material.  We editorialized: “Surely the criminal law has an answer to that. If someone steals my property I expect the law to protect me and the criminal to be punished, including any criminal who knowingly deals in my property. Can you imagine the wailing if the editor were put in the modern equivalent of the Tower? Of course it won’t happen-the editor is more likely to be awarded damages against the Prince. For stress, I suppose.”

The Court of Appeal has now ruled that the journals were “…private information, public disclosure of which constituted an interference with Prince Charles’ …rights.  As heir to the throne, Prince Charles is an important public figure.  In respect of such persons the public takes an interest in information about them that is relatively trivial. For this reason public disclosure of such information can be particularly intrusive.”   The Court cited the trial judge’s reference to the Prince’s  “private space: the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest.” The trial judge said the Prince “is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own human autonomy and dignity as is any other."

The fact that the journals were stolen by an employee under a duty to keep the contents confidential weighed heavily in favour of Prince Charles.  The judges said that without this the Princes’ case for privacy was “unanswerable”; with it his case was “overwhelming.”   Sir Michael Peat said: "We are pleased that the Court of Appeal has decided that the Prince of Wales’s case for breach of confidence is ‘overwhelming’ and has dismissed the Mail on Sunday’s appeal. This confirms what we have always maintained, that the Prince of Wales, like anyone else, is entitled to keep his private journals private."

The Mail on Sunday said, predictably and pathetically, that the ruling of the appellate judges is a "worrying threat to the freedom of the Press and to the public’s right to know”.  We only hope that the decision causes some elements in the media to worry not so much about future profits lost, but about the dangers involved in a repeat performance.  They should not assume that they can continue to break the law with impunity.













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