Ministers consider a law for free speech after Sussex ruling over fears that appeal judges have gone too far
Ministers are considering changing the law to protect free speech after the Appeal Court ruled in favour of the Duchessa di Sussex in a privacy dispute against The Mail on Sunday.
Downing Street said publicly yesterday that ministers would ‘study closely’ a ruling which upheld the High Court’s decision that Meghan had a ‘reasonable expectation of privacy’ over a letter written to her estranged father Thomas Markle.
But senior figures in Government went further and told the Daily Mail that a change in the law may now be needed to redress the balance between the competing rights of privacy and free speech.
Legal experts have said the case could have a chilling effect on free speech.
A Cabinet minister told the Mail judges in the case appeared to have gone far beyond what Parliament intended when including a right to a private life in the Human Rights Act – and given too little weight to the right to freedom of expression, which is also incorporated in law.
Downing Street said publicly yesterday that ministers would ‘study closely’ a ruling which upheld the High Court’s decision that Meghan had a ‘reasonable expectation of privacy’ over a letter written to her estranged father Thomas Markle
‘The judges have created a privacy law which Parliament never voted for,’ the source said. ‘MPs never agreed a privacy law because they knew it would be used by the rich and famous to cover up their misdeeds.
‘The balance between privacy and free speech is clearly wrong. If this is what the law says then it needs to change. It feels like we have had judge-invented law. It draws on laws passed by Parliament but it is not what Parliament ever intended and we should correct that.’
Downing Street also hinted at action. Asked whether the PM believed judges were getting the balance right between privacy and free speech, a No 10 spokesman told reporters: ‘We will study the implications of the judgment carefully.
‘You have heard the Prime Minister say before that a free Press is one of the cornerstones of any democracy, and this Government recognises the vital role that newspapers and the media play in holding people to account and shining a light on the issues which matter.’
The spokesman said he could not get into the ‘hypotheticals’ about what action the Government might take.
But a Whitehall source said ministers might consider changing the law to protect free speech in light of the judgment.
‘The feeling of a lot of people in Government is that something has gone too far,’ the source said. ‘Individual judges are making massive pieces of case law without reference to Parliament, and that is worrying.
‘There is a concern about where this leaves free speech and the freedom of the Press. No one wants a situation like the one in the US where justice is entirely based on the size of your wallet rather than the merits of your case.’
One source said reforms could be introduced as part of Justice Secretary Dominic Raab’s review of the Human Rights Act, which is due to report in the coming weeks. Another said measures could be brought in as part of the Online Harms Bill, which is due to be introduced to Parliament next week.
Damian Green, Tory MP and member of the Commons culture committee, disse: ‘If we want privacy laws, they need to go through Parliament and not be decided on a case-by-case basis in the courts.’
The interventions came after judges threw out an appeal by The Mail on Sunday, the Daily Mail’s sister paper. They ruled that ‘an unfortunate lapse of memory’ that led to the duchess apologising to the court did not affect the case.
Damian Green, Tory MP and member of the Commons culture committee, disse: ‘If we want privacy laws, they need to go through Parliament and not be decided on a case-by-case basis in the courts’
The Mail on Sunday had sought to take the case to trial after the High Court issued a summary judgment in Meghan’s favour. But the Appeal Court upheld the ruling, meaning there has been no opportunity to test the evidence in court or cross-examine witnesses. The newspaper has defended its right to publish extracts of the correspondence.
Any change in the law would not affect the progress or outcome of the case. But it could prevent it being used by the wealthy and powerful to block Press scrutiny of their activities.
In a lengthy statement Meghan said she hoped the ‘precedent-setting’ judgment would lead to a ‘reshape’ of the ‘tabloid industry’.
But Matthew Dando, a media lawyer at Wiggin LLP, said new legislation was the ‘only alternative’ because judges were now favouring privacy over freedom of expression.