Privacy law gone crazy?

Melvin Burgess is a very well-known author, writing for teenagers in particular. A number of his books have caused plenty of controversy — for example, Junk (“an uncompromising, compelling and true-to-life story of two teenagers drawn into the dangerous and destructive world of heroin addiction”), Doing It (“Three lads discovering sex for the first time. But do any of them really know what they’re doing?”),  Sara’s Face ( an interesting twist on fame and cosmetic surgery) and Lady – My Life as a Bitch (“A flirtatious, confident and rebellious teenager is transformed into an understandably confused and frightened dog by a tramp with magical powers”)[descriptions taken from reviews on].
His latest, as yet unpublished, book may yet ironically turn out to be one of  his most controversial. And it was intended to be a “teenage memoir… an affectionate look back, a chance for me to feel that maybe I wasn’t as useless as I seemed back then, and to invite others to feel the same about themselves”. Unfortunately, when the publisher, Andersen Press, received a libel report from its lawyer, it contained a terrifying list of people who might claim that their privacy has been infringed, and that the consequences of these claims being made on a “no win, no fee” basis could be ruinous for the publisher (not to mention the author). So the author adopted the usual trick of disguising names, dates, places, characteristics etc (apart from his own, of course), thus turning it from a memoir into something entirely different, but even this wasn’t acceptable to the publisher. Whether the publisher then rejected the book or the author then withdrew the book is not quite clear from the article  in The Guardian, but the outcome is that Andersen Press will not be publishing this book– which is a shame, as they have published so many of his books.

The author remains optimistic that another publisher will publish the book — “other lawyers and publishers are more sanguine”. However, this whole episode is perhaps a sad reflection on the state of the law in the UK nowadays.

The U.K.’s libel laws are repeatedly criticised for being repressive, anti-free speech and much too biased in favour of claimants. This is particularly so when compared with the libel laws of the United States.  If this example is anything to go by, then UK privacy laws, deriving from the European Convention on Human Rights, and combined with the libel laws, threaten to make things even more dangerous for authors and publishers. The problem is that few, if any, publishers (even large multinational publishers) would be prepared to go ahead and publish when advised that the publication could risk multiple substantial claims. Even a highly successful author might struggle to compensate the publisher under the warranties and indemnity that the author is bound to have given to the publisher in the publishing contract.  And if the publisher were to publish, having been warned of the risks, it might even be argued that the author would not be obliged to indemnify the publisher in the event of any claims.

The result of this climate of fear could be the entire loss of the genre of memoir or — just as bad — that only fictional memoir can safely be published in future.

Perhaps what is needed is for a brave publisher, preferably with deep pockets, to publish a book such as this and to fight any resulting claims, so that we can see what will be the attitude of the courts to such claims. Any volunteers?


One Response to Privacy law gone crazy?

  1. Bernie Nyman says:

    I’ve talked this over with my wife — and her sympathies were firmly with protecting the privacy of the individuals about whom Melvin Burgess wanted to write as being part of his teenage years. This approach is consistent with the case of Ash v McKennitt, which came before the Court of Appeal in December 2006. In that case, Loreena McKennitt, a Canadian folk singer who had sold millions of records, sought to prevent further publication of information in a book entitled “Travels with Loreena McKennitt: My life as a Friend”, written by Niema Ash. The Court of Appeal upheld the original decision granting an injunction against publication of various categories of information, the precise details of which were naturally not disclosed in either the original judgment or that of the Court of Appeal, since to do so would destroy the very privacy that the judgment sought to protect. This is a very useful case for a review of the proper approach towards balancing the competing Article 8 (right to respect for private and family life, home and correspondence) rights with Article 10 (freedom of expression) rights.

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