Enemies of the Press?
The Mail wants its day in court - to do what, exactly?
The Daily Mail is at it again. In 2016, they famously labelled three Court of Appeal judges as “Enemies of the People” for ruling that an important decision had to be referred to Parliament. Today, they accuse three (different) Appeal judges of unleashing “a dark day for truth and free expression” by undermining “the right to rigorously test in court the evidence in any given case” – a right which “has, over the centuries, become one of the cornerstones of a civilised society.”
I’m sure that every right-thinking person wants those rights upheld. I certainly do. And I’d wager a fair sum that the three judges want that too.
The Mail is upset because their sister publications, the Mail on Sunday and the MailOnline, were found to have breached the privacy and the copyright of the Duchess of Sussex (aka Meghan Markle) by publishing substantial extracts from a letter she had written. The court decided that the published material was all the evidence that a judge needed to determine the matter. They saw the evidence – and rigorously examined it – before reaching their decision. So, too, did the High Court judge who had made the original judgment that the Mail was now appealing.
No doubt, the Mail would prefer not to have lost the case. But, legally, it was a slam dunk against it. What the Mail really wanted was its day in court – possibly several days – cross-examining members of the Royal Family and their entourage in order to attract more publicity and to sell more newspapers. None of that was the least bit relevant to the Duchess’s privacy or to her copyright in the letter. The High Court and the Court of Appeal made that quite clear.
A key issue that the Mail overlooks – and presumably hopes its readers will not spot for themselves – is that, if one has to tell a judge why one wants a matter to remain private, the privacy is already eroded. And since evidence given in front of a judge will be heard by the other side – and, in all normal circumstances, the court will be open to members of the press and the public – the privacy would be lost in a very public way. If a matter is protected by privacy law, one shouldn’t have to explain why one wishes to avail oneself of that privacy.
Many readers may be fooled when they read the Mail’s argument today:
With the facts vociferously contested, and the Duchess of Sussex's credibility as a witness called into question after she admitted misleading judges, fair minds might have thought the wrangle should have proceeded to trial.
Yes, there are contested facts. But none of them relates to the privacy or the copyright that the Mail was accused of breaching and was found to have breached.
And, yes, the Duchess’s initial case submitted to the court had contained an error of fact which has subsequently emerged and which raises questions about her truthfulness. But, once again, the Court of Appeal considered the point and decided it simply was not relevant. Despite the Mail claiming in its article today that the judges “airily dismissed her falsehoods as a mere 'unfortunate lapse of memory'”, they did no such thing. The words used in the judgment were:
This was, at best, an unfortunate lapse of memory on her part, but it does not seem to me to bear on the issues raised in the grounds of appeal, and it has been given no prominence in Associated Newspapers’ oral argument. [My italics]
The words “at best” signal that the judges considered that the error could have been a whole lot worse than an unfortunate lapse of memory. They don’t know. But – and I repeat myself here – it simply wasn’t relevant to know whether it was a forgetful lapse or a deliberate lie.
Yesterday’s judgement was not a reversal in the time-honoured freedom of the press. As Brian Cathcart, professor of journalism, writes:
Journalists are taught in the earliest part of their training that it is extremely hard to justify publishing the contents of private correspondence, both on privacy and copyright grounds.
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