Musician Loreena McKennitt's British court victory in a suit over a former friend's book creates unprecedented protection for the privacy of the famous, writes Roy Greenslade
The names of Loreena McKennitt and Niema Ash do not trip off the tongue on this side of the Atlantic. Yet the courtroom struggles between these two Canadian women could have far-reaching implications for Britain's journalists and authors. It is no exaggeration to say that freedom of expression is at risk because lawyers believe McKennitt's landmark victory creates unprecedented legal protection for the privacy of famous people.
Though the outcomes of various court hearings in the case have attracted some publicity, the details of the dispute have not been explored.
Now, following the refusal of the House of Lords, the highest court in the UK, to hear a further appeal, it is possible to get to grips with the issues. There is a possibility of a petition to the European Court of Human Rights, but that has not deterred Ash from deciding to talk openly about the case for the first time.
Nor, despite facing a likely £1 million (€1.47 million) demand for legal costs, has it dissuaded her from risking imprisonment by republishing the book that led to the years of legal actions.
What has to be understood first is that Loreena McKennitt is a big star around the globe, especially in her home country, the US and continental Europe, as a singer, composer, harpist, pianist and accordionist. Her brand of Celtic-inspired music has generated millions of album sales, and though she is known only on the folk music circuit in Britain, her show at London's Barbican last week was a sell-out.
Before she became a star, back in the early 1980s, she was befriended by Ash, a travel writer and Yeats scholar who had settled in London. From the first moment she saw McKennitt sing in a Montreal club, Ash was captivated by her talent. Each soon became the other's closest friend.
If anything, Ash's partner, Tim Fowkes, was even more struck by McKennitt and the three gradually formed a close bond. Once McKennitt became famous Ash and Fowkes worked for her, initially for love and eventually for money.
When McKennitt bought a broken-down Irish cottage, it was Fowkes who carried out the regeneration work. Meanwhile, Fowkes and Ash ran the merchandising operation during McKennitt's tours. But, as the years passed, it became clear to Ash that fame and riches had changed the nature of their relationship. "I was focused on friendship," she says. "Loreena was focused on career." According to Ash, McKennitt was given to losing her temper. At first, it was only with other people. Then, on a couple of notable occasions, she argued with Fowkes - firstly over his work on the Irish cottage - and later criticised both him and Ash for other supposed failures. Even so, they overlooked the outbursts. "I tended to forgive her everything, to see everything from her point of view," says Ash, reiterating that they were the closest of friends.
They were so close that when Ash and Fowkes suddenly needed money to move to a new house in London, McKennitt gave them £30,000 (€44,000). The nature of that payment - whether it was a gift, loan or an investment - was later to become the centre of a bitter dispute because, some time later, McKennitt demanded that it be repaid.
By the time the quarrel had concluded, with the couple paying McKennitt £67,000 (€99,000) in a legal settlement, their friendship was at an end. "I was devastated," says Ash. "I got ill with the whole thing. I couldn't believe it was all over."
IN ORDER TO try to come to terms with the collapse of their relationship - "a cathartic exercise" - she decided to write a book about her experiences, called Travels With Loreena McKennitt: My Life as a Friend. To ensure control, Ash also arranged to publish it herself.
Published in June 2005, the book is essentially about the nature of celebrity, though it clearly dwells on intimate personal matters too. McKennitt has given many interviews herself, but had previously stopped the publication of another book about her songs, citing her right to privacy. So Ash cannot have been too surprised when she launched a legal action to ban the book. She later reduced that to a demand that 38 separate sections be deleted, some as small as five lines.
But it was the cause of action that was so surprising. She did not sue for libel, which is fairly normal in such circumstances, but claimed the book breached her privacy.
An affronted Ash refused to accede to the demand and, having previously armed herself with insurance, decided to fight the case. Once the insurers' money ran out, its lawyers were forced to retire, and Ash represented herself in the high court. It is impossible to know whether Mr Justice Eady's decision would have been different if Ash had had the benefit of an experienced barrister, but his ruling certainly astonished the legal community.
In finding for McKennitt, and insisting that eight of the 38 instances should be expunged, the judge tipped the balance away from freedom of expression for the media, and towards "the legitimate expectation of citizens to have their private lives protected".
He drew heavily on the controversial European Court of Human Rights victory by Princess Caroline of Monaco over pictures of her taken in public. Eady decided that information does not forfeit its "private" quality simply because it concerns events that could have been witnessed in a public place or because third parties are involved. In other words, authors cannot assert they have a right to freedom of expression if, in telling their own life stories, they reveal information about someone else's.
The judgment, delivered in November 2005, came as a shock to Ash. "I was amazed, and I'm still amazed," she says. "If I had published my book in the States or Canada, there's no way she could have stopped me saying what I did." As proof of that fact, the Toronto Star last year published several of the passages that the judge said must be deleted. I have read them and, though I cannot tell you what they said, I cannot understand why such relatively mundane details should not have been published.
I agree with the conclusion of the Star journalist, Judy Stoffman, who said that even the most personal revelations "seem not at all gratuitous" and are clearly "intended to illustrate Ash's affection and care for McKennitt over nearly 25 years".
It was noticeable during my interview with Ash in the London house she shares with Fowkes that her admiration for McKennitt's achievements, and her respect for her musical talent, remains undimmed.
BUT SHE IS facing ruin if she is pressed to pay the costs of the various court actions. She lost her appeal against Eady's judgment and also lost her petition to the House of Lords. Her appeal was backed up by a letter from leading UK media companies, arguing that there was a potential impact on the media's ability to report, but to no effect.
Ash has also published a new version of the book, deleting the offending material but adding a chapter that deals with the trial. "It was held in private and I think that was grossly unfair," she says. "As for the judgment itself, let me just say that I believe it was seriously flawed."
McKennitt has issued a statement greeting the House of Lords decision, talking of her right to privacy having been secured and adding: "As an artist I naturally feel strongly about freedom of expression, and I feel vindicated that the law supported my view that freedom comes with responsibility for decency, fairness and truth."
That, of course, is a reasonable response. But it's hard to see, from the available evidence, that Ash was anything other than decent and fair and truthful. "It isn't a kiss-and-tell book", she says. "It's about friendship and fame. It's my story, and I should be allowed to tell it." ... - Guardian service