Memorandum submitted by Loreena McKennitt

 

 

1. INTRODUCTION

1.1. My name is Loreena McKennitt and I was the claimant in a 2005 UK privacy case, McKennitt v Ash.

1.2. As an artist and businesswoman in the music industry, I have run my own recording and management company since 1985 and have sold over 14 million recordings around the world. In addition to being responsible for the creative direction for this company, I continue to be intimately and continuously responsible for many of the day-to-day business affairs involving analysis, marketing, promotion, communications, staffing, budgets, and timelines.

1.3. For my civic duties, and charitable contributions, I have been recognized as a Member of the Order of Canada, awarded three honorary doctorate degrees from leading Canadian universities, and as well hold a role as Honorary Colonel in the Canadian Military. I am a member of Amnesty International and PEN. (Further biographical background can be found in an accompanying sheet.)

1.4. I would also add that as a citizen and consumer I have long had a keen interest in the media both in and outside of my professional career. I have travelled annually to the UK since 1981 and my familiarity with print, radio and television media there is relatively current. This is in addition to that of most Canadian media.

2. APPROACH TO THIS SUBMISSION

2.1. I would like to thank the Committee for the opportunity to make a submission and to offer my comments on the subject of privacy and media accountability:

2.1.1. First, setting out some framework of what I understand privacy to be and why it is necessary for human dignity,

2.1.2. Presenting my perspective on the media, their business model, how their commercial interests can undermine their ability to serve the public's interests and some aspects of the relationship of artists and the media,

2.1.3. Lastly, supporting my comments by sharing with you some of my own experience with UK and international media and the manner in which they became involved in the UK legal proceedings of McKennitt v Ash. In doing so, I set out my particular concerns with regard to the freedom and responsibilities of 'the media'.

 

3. WHAT IS PRIVACY?

3.1. As described in the academic research of such experts as Dr Alan Westin of Columbia University, historically privacy has been an essential ingredient in the healthy psychological development of humans, the animal kingdom, and their respective societies.

3.2. Privacy is spoken to in both the United Nations Declaration of Human Rights and the European Convention on Human Rights. Commonly, it is understood as a desire to be left alone without undo and relentless observation, to be one's own self and undertake all the important, mundane or even frivolous activities of one's life; of living, learning, and even making mistakes without constant judgment and commentary. It also means the autonomy to impart information with respect to one's self as one feels comfortable or is relevant in the best interests of themselves or family.

3.3. Sometimes, privacy is not well served by the English language. Often confused with secrecy, privacy (in the sense of confidentiality) can be integral to industrial, political or business applications as well as personal ones. It can be an essential condition in exploring, discussing or negotiating all manner of content in a way where there is less danger of information being conveyed to outside parties prematurely, out of context, insufficiently, inaccurately or counter-productive to what would be generally accepted as the common good. Examples of these kinds of situations could be the recovery of kidnapped citizens, employee negotiations or indeed the option that this submission at hand be restricted to this committee's use.

3.4. Until recently, privacy has not been a significant subject of concern for most 'anonymous' persons as their very anonymity has protected their privacy. It has been kept in check by the 'analogue' manner in which information was captured and the small circle of people in which that information might have been circulated. However, since the advent of digitized content - the internet, data bases, data collection and mining - and the speed at which this information can be widely disseminated, much of the public has become aware of certain vulnerabilities concerning their privacy, and subsequently most businesses have developed privacy policies.

4. THE NATURE OF 'THE MEDIA'

4.1. Most media outlets are privately owned and commercially driven corporations. Within their multiple platforms, they trade in commodities called 'stories' in order to sell advertising real estate. Stories, (including reports, articles and commentary) like any piece of 'art' are designed to work optimally in a certain scale, composition, attitude and dynamic in order to elicit from the reader/viewer/listener responses ranging from simple entertainment to outrage, dismay and heartache. These parameters are also designed to support the fiscal qualifications and demands of the media's business plan and other considerations such as the commercial sensibilities of advertisers or shareholders.

4.2. Technological advances, in a faster and increasingly competitive market place, have caused a 'tsunami' of change in relation to the media's business model and they (like the music and film industries) are in transition, attempting to find new models that can sustain them into the future.

4.3. During this time of transition, media outlets are making numerous changes. This affects their infrastructure, technology, staffing, bureau locations, the kinds of stories presented, the manner in which those stories are generated, the platforms on which they reside, where they will be stored and retrieved and whether they will be free or purchased à la carte or by subscription.

4.4. Lengthy, well-researched and accurate 'stories' (once the craft of journalists in the past) have become less viable and much more expensive to create and sustain, especially if the subject matter is in any way complex. Instead of news and genuine reporting there is a growing trend towards reality TV, citizen journalism and opinion and commentary where the standards are demonstrably lower and for which fewer financial and human resources are needed. Some of this content is well researched, accurate, balanced and fairly presented. A considerable amount is not and the laws regarding privacy and libel (and those entities responsible for administering them) strain to keep up to the pace. So does the taxpayer's pocket book.

4.5. Moreover, the tone of commentary is increasingly snide and bullying, implying that editors are bereft of the courage to let the other side explain or defend themselves.

4.6. Not only has this 'wild west' environment callously disrupted or destroyed many lives and businesses and interfered in world events, it has set up a toxic and dysfunctional environment for what should be healthy dialogue between public officials, leaders and the public, often sending a chill to those who are in or considering public office.

5. EROSION OF PRIVACY WITH RESPECT TO THE MEDIA

5.1. At the same time social networking sites on the internet such as Facebook and MySpace have played into a portion of the public's appetite for voyeurism and fascination with fame, contributing to an erosion of a healthy understanding and respect for the role that privacy holds in our everyday lives. This in turn lays the psychological groundwork for the media to create and pursue the 'cult of celebrity'. Fame is being sold as a goal to be pursued which is more important than education or accomplishment.

5.2. The journalistic media are not alone in this celebrity driven commerce. Record, film and publishing companies, agents and managers for example, in addition to selling their products, also work to package their artist's persona as a commodity. Many artists in early stages of their career can become trapped in this promotional web, not yet understanding the business and personal implications of the activity they are often required to support. Others are more able to separate their personal life from the professional. They do not seek fame, but the success of their art alone can place them in a relentless media limelight. What might have begun as a mutually beneficial professional arrangement of content and commerce has often disintegrated into an inhumane exercise of stalking and entrapment that resembles the pursuit of a wild animal in an ever-decreasing natural habitat.

5.3. The whole process perpetuates itself like a feedback loop inducing a sense of entitlement to know everything about everyone under all circumstances. Once an appetite has been developed, the media's response to critics is: "We are simply delivering what the public wants."

5.4. How much of the public? I would ask, and at what price? Is serving the curiosity and voyeuristic tendencies of some to be at the cost of the dignity and human rights of others? This has recently been illustrated in a variety of transgressions ranging from publicizing of the medical records of well-known people to the tapping of the royal household phones, or photographing or describing in intimate detail the manner in which some people have committed suicide.

5.5. It is not just well known persons or true public figures whose privacy is intruded upon but also unknown people who become 'newsworthy' by virtue of being victims of or witnesses to 'interesting' events.

5.6. It is most disingenuous when the media coyly substitute what the public is interested in for the true public interest when attempting to justify their freedom of expression, which I might rather call 'exploitation of expression'. As intimate daily events become raw fodder for the media 'beast' the media have grown away from covering the news in a neutral way, to becoming part of it and rendering much of it as superficial entertainment as they abdicate their own code of ethics.

5.7. When media infringements do occur, personal lives and reputations are damaged and difficult if not impossible to repair. There is seldom a quick or satisfactory mechanism of redress either due to lack of financial resources, or the intimidation that more privacy or reputation will be compromised through a legal process with no promise of success. Most press councils on both sides of the Atlantic are funded and administered by the media. As in most other segments of society, financial or otherwise, self-regulation has not proven to be sufficient or satisfactory.

5.8. A rap on the knuckles long after the fact does nothing to assuage the pain of intrusions into one's private sphere, nor the damage to reputation that can result from reckless exploitation. At one time, when apologies or corrections might have been noticed in the newspaper of record it might have had some practical relevance. Today the initial story may have travelled around the world in seconds and been amplified and further distorted by repetition in news clips, blogs and fan sites. Sadly, retractions never follow the same paths of dissemination and so blatant untruths remain like litter awaiting a search engine request.

5.9. It is ironic to note that it is the media which has coined the term 'libel tourism' in order to frame with ridicule all matters of libel as nothing more than recreational activities by the 'rich and famous' from abroad. Although so called 'libel and privacy tourism' has been decried as a threat to democracy and media freedom, they are false decoys thrown up by the media to distract from the true effects of international internet access. Shopping for a favourable jurisdiction is far more likely to originate from members of the media seeking to avoid any limitation on their activity (such as a publication order or a judgment), regardless of how lawful and justified the restriction may be or how damaging the false or intrusive revelation is to justice, security or innocent bystanders. Defenders against media giants have a necessity to pick their battles and should have a right to enforce judgments if they can.

6. MCKENNITT V ASH¹

6.1. With respect to the privacy case in which I was the claimant there are two main aspects that I believe to be relevant to your inquiry.

6.2. The first aspect was the book written by a former and aggrieved friend and employee. In addition to containing false and libellous information, this book was found to have breached my privacy as it pertained to matters concerning my bereavement after the death of my fiancé, my health, personal relationships, and the description of my home.

6.3. The legal process began by my attempting to protect an employee confidentiality agreement and resulted in a trial in the High Court in November 2005. Ms. Ash (the defendant) was a resident of the UK and published her book there.

6.4. The second aspect occurred with respect to the coverage of this case in both the UK and Canadian media, in their international bureaus and of course across the internet.

6.5. The points of concern include the following:

6.5.1. When the media has a vested commercial interest in the outcome, how does this shape their coverage of a story?

6.5.1.1. Media consortium in appeal stage. Once the UK media became aware of the impact of the judgment with respect to potential curtailment of 'kiss and tell' journalism, they formed a consortium which sought to intervene by seeking standing before the Court of Appeal and providing the Court with a written submission.

6.5.1.2. Cross-pollination between international media of factual inaccuracies. Errors in reporting by elements of the Canadian media were propagated by media in the UK. Most significant was the assertion that the claimant (I) did not challenge the veracity of the book's contents, when in fact even a cursory reading of the trial judgment would reveal that more than half the book's content was challenged and examined at trial. This grave and revealing error was most recently repeated in Paul Dacre's speech before the Society of Editors in November 2008.

6.5.1.3. Members of the media become involved in a case. A member of the Canadian media with whom the defendant had been corresponding before and during the trial made his way into the case (See para 160 trial judgment[1]) and continued to write about it following the judgment, not notifying his readers. Moreover it was this individual who first falsely asserted that the claimant had not challenged the veracity of the book's contents.

6.5.1.4. Attacking the judge of first instance by framing his work as establishing privacy law by stealth. This outrageous assertion speaks to the chill the media would like to exert on anyone who stands in their way. Even if the judge is only interpreting existing law and his judgments are confirmed by numerous other judges in the appeal process.

6.5.2. The relationship between Media and aggrieved individuals.

This case raised concerns about how media responds to aggrieved or vengeful individuals in the development of a story, particularly when it involves a well-known person. How reliable are their sources of information and what research is undertaken to broaden the understanding of what is involved? In McKennitt v Ash, the defendant Ash had courted connections with the media not only upon publication of the book, but during and after the trials. This content was then picked up in the UK by writers and media 'educators' such as Roy Greenslade, who wrote 4 articles on the case all from the sympathetic standpoint of the defendant (including over tea in her London drawing room.) He was then invited to speak on national radio (CBC) in Canada.

6.5.3. Speaking to litigants during a trial.

Most media are well aware that the justice system frowns on litigants speaking to or through the media during a trial. The inability to respond to this biased coverage, combined with lack of research and inaccurate reporting on the part of journalists and bloggers put the claimant in a compromised position with respect to the public's understanding and appreciation of the case. Are any measures in place to ensure that the privacy and reputation of the subject are not being prematurely leveraged through threat of publicity until a trial has been conducted and all evidence is reviewed?

6.5.4. Lack of accurate, thorough and balanced reporting.

6.5.4.1. Through the challenging of the book's contents, it was found that the defendant had "beefed up" witness statements with respect to a previous property dispute in order to portray the claimant as a "dishonest and vindictive" person, for the purposes of her attempted public interest defence. This glaring and important information was never reported by any media, nor did they reveal that she sought to leverage the claimant's reputation via the media as evidenced in a letter she wrote her solicitor at the time. (See Para 121, trial judgment[2].) Either they didn't see this or chose not to as it did not serve their interests.

6.5.4.2. Because the media played an important role in the defendant's strategy of 'revenge' she was in constant contact with them. Once the media consortium asserted that their interests were at stake in this case by seeking standing at the appeal, many gave her and her version of the story considerable sympathetic coverage. At no time did anyone in the UK media seek to speak with the claimant once the trial was over and was then in a position to speak with them.

6.5.4.3. There was little evidence to indicate that journalists had read judgments and core documents relevant to a case before reporting.

6.5.4.4. Many commentaries on this case, including that of Roy Greenslade, misled the public to believe that the media's ability to pursue matters of true public interest would be compromised by the outcome of this case. A careful reading of the judgment could not support such an assertion.

6.5.5. Coverage of a legal case by non-legal reporters

Because this case involved a singer and a writer, Canadian media coverage was conducted by 'entertainment writers'. There was virtually no balance from the point of view of human rights or legal background to the case. In the UK it was covered by a range of 'media interest' reporters.

7. IMPACT AND COSTS OF TRIAL AND MEDIA COVERAGE

7.1. The trial itself and the ensuing media coverage of this case was a most difficult and unsettling experience. To a great degree my privacy and reputation were further needlessly and irrevocably compromised. Wounds of grief were reopened. Not only did it cost a considerable amount of money and resources which my small company could ill afford, it also took away valuable time from my family which I will never recover. Moreover, I can only view it as a massively and disrespectful use of UK tax payer's money. Although the defendant had hoped individually to capitalise on my established audience and publicity about the case for her own book sales, she was abetted and psychologically supported by a media who had their own vested commercial interests.

8. CONCLUSIONS

8.1. Corporate media hold a firm grip on most of the major mechanisms of communication in our society. In so far as they promote themselves as the watchdogs of society and defenders of free speech and democracy, does not the public deserve greater transparency and accountability with respect to their operations? When balancing the broad freedom entrusted to the media in exchange for their responsibility to serve the public's true interest, a vital question must be asked:

When their commercial interests are in conflict with the public's interests, whose do they serve first and how to they reach that conclusion? Who watches the watchdog?

8.2. To ignore the commercial dimension of the media in our society is to fail to undertake a complete appreciation of the situation. It is at our peril that we do so for they continue to erode important human rights and set up increasingly toxic environments for what should be healthy democratic discourse and debate.

8.3. With respect to privacy, it is my strong belief that the balancing of the rights of free speech and privacy are best undertaken in the courts of law, or in independent process which is properly set up to examine evidence and hear witnesses, not trial by media.

8.4. I understand it is the duty of this committee to wrestle with media accountability. It is my personal and humble opinion that I am not alone as a member of the public in feeling that the commercial media has crossed a line and is increasingly abdicating the trust our society have placed in them .

8.5. We are left with the impression that free speech is only for those who have the power to express it. All others will be denied. The message is, free speech does not mean equal access to free speech.

8.6. If this is indeed so, I can only hope that this committee and other legislators will find the courage it will take to tackle this powerful entity in our society, to bring it back into line with other segments of society in protecting and defending all human rights. Not just that of freedom of expression.

Thank you for your consideration and good luck with your work.

 

 

January 2009

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[1] Link to McKennitt v Ash - Judgment; Link to McKennitt v Ash - Appeal

[2] Link to McKennitt v Ash - Judgment; Link to McKennitt v Ash - Appeal