Written evidence 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.
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 a" 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 publicising 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 ASH[88]
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 judgment1)
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 four 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[89]).
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
88 Link to McKennitt v Ash-Judgment; Link
to McKennitt v Ash-Appeal. Back
89
Link to McKennitt v Ash-Judgment; Link to McKennitt
v Ash-Appeal. Back
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