She had successfully sued the publisher of the Mail on Sunday for a breach of her privacy, data protection and copyright after it printed extracts from a handwritten letter to her father, Thomas Markle. A High Court judge had ruled in her favour without a full trial.
Associated Newspapers brought an appeal against the decision, arguing that her “credibility” should be tested at trial. Court of Appeal judges dismissed the appeal this week. The Mail on Sunday said it would consider taking the case to the Supreme Court.
Politicians, lawyers and campaigners raised concerns in the wake of the latest judgment that the courts are interpreting the law in a way that extends privacy rights beyond what was intended by Parliament.
Prior to 1997, England and Wales did not have a specific law governing privacy, but the introduction of the Human Rights Act demanded that courts balance a person’s right to a private life against the right to free speech.
Mr Raab told Times Radio he was concerned about the growth of judge-made privacy law in recent years, fuelled partly by Strasbourg case law and the EU’s decision to enshrine in law the right to be forgotten, enabling individuals to have private information scrubbed from the internet.
Signalling that his plans to overhaul the Human Rights Act would be announced before Christmas, he said: “We do in this country have a tradition which emphasises and prioritises free speech and open debate. I think that’s something which is pro-freedom that we’ll look at.”
That included stopping the rich using their position and money to avoid scrutiny of their private lives, he added.
“We’ve had a heavier emphasis on free speech transparency, accountability for politicians, for people in positions of influence. We don’t have the continental-style privacy law protections. If we were going to go down that route, it should have been decided by elected politicians,” he said.
“That’s a good example of the kind of balance that we can strike with our own home-grown approach to this rather than the over-reliance on a continental model, which is effectively what the Human Rights Act has left us with. At the same time, what I want to see is stronger respect for the democratic prerogatives of Parliament to legislate in those areas.”
Mr Raab acknowledged that there were cases such as the Government’s Online Harms Bill where free speech had to be balanced by the need to “protect people from the paedophiles, the scammers, and also the radicalisation that takes place online. So it’s about getting the balance right”.