Sarah Ferguson scandal raises debate on right to privacy

26 May 2010 by

Sarah Ferguson, the Duchess of York, is in trouble for offering to sell her influence for cash. She proposed to sell access to her ex-husband Prince Andrew, a “trade envoy”, for £500,000 to an undercover reporter from the News of the World. The circumstances of the sting raise interesting issues in respect of the right to privacy under the Human Rights Act.

Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence“. The right is not absolute, and can be breached by a public authority “in accordance with the law and is necessary in a democratic society”, that is, if the breach is in the public interest. Only public authorities need to keep within these rules.

The Inforrm Blog has posted an interesting analysis of the issue, concluding that

it seems to us that there is a proper justification for the publication of the story.   What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered… The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter.  The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason.

However, although there was a legitimate public interest in publication, it is clear that the “News of The World” did not notify the Duchess in advance of the publication. It is unclear to us why the “News Of The World” did not give such notification, especially since it appears to be the position of the media from their submissions to European Court of Human Rights in the Mosley application that pre-notification is the norm.

Heather Brooke, writing in the Guardian, says that the case highlights continuing problems with the Royal Family and freedom of information law, as “Among the laws rushed through in the “wash-up” of the last government was a change to the Freedom of Information Act granting an absolute ban on all communications with the royal family and royal household. Prior to this such information was still exempt but if there was a public interest in the material, it had to be disclosed.” This is in marked contrast to correspondence in relation to MP’s expenses.

After a three-year legal battle the Independent has recently won access from the Information Commissioner to royal palace expenses, which had originally been refused by the Government in light of the “well established constitutional principle” that correspondence between the sovereign and government is confidential in nature. Brooke concludes

The monarchy is a part of the state. It exists to serve the people. By granting the royals an absolute ban from FoI, the previous government made it clear that the interests of the royals were more important than that of the people. This is an extraordinary and undemocratic victory for secrecy, and one that can only invite scandal.

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