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The Law Of Privacy In England And Wales Part 4


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4 June 2008

As discussed last week, whilst the House of Lords decision in Douglas v Hello! was eagerly awaited by many media lawyers, it has actually proved to be the decisions of the lower courts which have, so far, provided the most practical guidance in this area as to where any line is to be drawn.  Here we look at these decisions in further detail, starting with one of the most important, the Court of Appeal judgment in the case of McKennitt v Ash. 

McKennitt v Ash (Court of Appeal)

This case involved a book about the Canadian folk singer Loreena McKennitt.  The book in question, written and published by a former friend and sometime employee Niema Ash, included details relating to (inter alia) renovations to a house Ms McKennitt owns in Ireland, some general terms of her recording contract, and grief at the death of her fiancé.  After the book was published, McKennitt sued Ash for violating her right to privacy.  Following a closed trial where Ash acted as her own lawyer, Mr Justice Eady enjoined several passages in the book and awarded damages of approximately £5,000 to McKennitt. 

The Court of Appeal upheld the judgment, setting out five propositions as summarising the relevant law.  They were:

  1. There is no English domestic law tort of invasion of privacy;
  2. Therefore, to develop a right to protect private information (as required by Article 8 of the Convention) the English courts must proceed through the tort of breach of confidence, into which the jurisprudence of Articles 8 and 10 has to be “shoe-horned”;
  3. That while it may lead to a feeling of “discomfort” that the action for breach of confidence be employed where there is no pre-existing relationship (of confidence) between the parties, the ‘confidence’ arises on the acquisition by unlawful or surreptitious means of information which the receiving party should have known they were not free to use (as in the case of Douglas and Campbell).  The Court felt that two further points should be noted;
  4. The difficulty referred to in (iii) above is avoided by “the rechristening of the tort as misuse of private information” (per Lord Nicholls in Campbell); and
  5. Of great importance (at least in relation to McKennitt, which the Court felt was “old fashioned breach of confidence”) is the presence of a pre-existing relationship.  Conduct inconsistent with this pre-existing relationship then affords the Court a firmer basis than the “purloining of private information.”

The Court of Appeal further suggested that when assessing a claim for the “misuse of private information” or the “unjustified publication of private information” against the media, the Court would have to decide two things.  First, whether the information is in principle protected by Article 8?  If so, whether under all the circumstances, the interest of the owner of the private information must yield to the right of freedom of expression.  Under this balancing exercise, courts will therefore look at the information, with each item considered separately, and decide the comparative importance of each of the rights and the justification for interfering with either of them (Article 8 or 10). 

The House of Lords rejected the defendant’s petition for permission to appeal on 29 March  2007. 

Browne v Associated Newspapers Limited (Court of Appeal)

This case, involving another claim for breach of confidence, was heard in private before Mr Justice Eady and the Court of Appeal under the name “Z v Associated Newspapers Limited.”  The Court of Appeal upheld Eady J’s decision (who granted an injunction in respect of some pieces of information and refused it in relation to others) and gave judgment in public. 

The claimant, Lord Browne, was Group Chief Executive of BP (his resignation followed the release of Eady J’s judgment).  He applied for an injunction to prevent the publication of certain information provided to the Mail on Sunday newspaper by his ex-boyfriend, Mr Jeff Chevalier.  Their four-year relationship had ended leaving Mr Chevalier to encounter financial difficulties, a fact which led him to the Mail on Sunday.  Lord Browne obtained a broad injunction initially.  After hearings on 23 January and 9 February 2007, Eady J maintained the injunction in part, discharging it in respect of other matters.

The Court of Appeal, having looked at Campbell and McKennitt, held that in cases relating to an injunction they had to consider whether the claimant had shown that he was “likely” to establish at trial that publication should not be allowed. 

In relation to Article 8, the court asked whether the claimant had a “reasonable expectation of privacy” in the circumstances of the case.  This question is relevant whether or not there has been a previous confidential relationship between the parties.  In cases where there is no previous confidential relationship then the primary focus will be on the “nature of the information”; where there had been a previous confidential relationship then that (the relationship itself) will be of particular importance in answering the “expectation of privacy” question.  However, merely because there has been a previous confidential relationship does not mean that the test is satisfied automatically.  The court said there are a number of questions to be answered when determining whether there is a reasonable expectation of privacy; “they include whether the person concerned … received information which he knew or ought reasonably to have known was fairly and reasonably to be regarded as confidential or private.” 

The test must be applied to each item of information received by the person concerned in the course of the relationship.  The relevant circumstances for consideration will include the nature of the information itself and the circumstances in which it has been imparted or obtained. 

In this case the newspaper wished to publish five categories of information, identified as (a) to (e).  The Court of Appeal focused on the three classes of information in respect of which the judge had refused an injunction:

(b) the alleged misuse of BP resources to help Mr Chevalier;

(c) the “bare fact” of the actual past relationship between Lord Browne and Mr Chevalier; and

(d) an alleged breach of confidence involving the Claimant discussing BP business with Mr Chevalier and showing him confidential documents. 

The Court of Appeal said Mr Justice Eady had been correct to ask whether a prima facie duty of confidence arose in respect of the information due to the relationship.  In relation to (b) and (d), he had also been correct to conclude that the Claimant had no reasonable expectation of privacy in information relating to corporate matters which may be of interest to shareholders etc.  The Court of Appeal also thought Eady J was entitled to conclude that the public interest in publication may override any privacy rights in such information, while rejecting the argument that there was no reason to publish this information in the press as it would have been sufficient to have informed BP.  This was on the basis that “BP is a large international public corporation with very large numbers of shareholders.”

Turning to (c) and the “bare fact” that Lord Browne had been in a relationship with Mr Chevalier, details of this kind would appear to be completely unrelated to Lord Browne’s professional position at BP and rightly form part of his “private” life protected by Article 8 of the Convention and the Von Hannover decision.  The Court of Appeal upheld the decision to permit publication of the fact of the relationship simply on the basis that the publication of the information in classes (b) and (d) would make no sense otherwise; people would not be able to place the alleged misuse of company resources in context if they didn’t understand the relationship between the parties.  However, despite this, they doubted that Eady J was right to permit publication of the fact on the basis that the relationship itself was “in the public domain.”  Even though Mr Chevalier had accompanied Lord Browne at various functions and social events, the Court of Appeal stated “it appears to us that there is potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper.”  
One other feature of this decision which received wide publicity relates to a lie told by Lord Browne.  He misled the court in relation to the circumstances in which he and Mr Chevalier had first met (he said they had first met whilst he was exercising in Battersea Park whereas they had actually met through an escort service).  Eady J did not refuse injunctive relief though obviously Lord Browne had not come with “clean hands.”

HRH The Prince of Wales v Associated Newspapers Limited (Court of Appeal)

The Court of Appeal refused the appeal of Associated Newspapers against a summary judgment in favour of Prince Charles.  The case concerned the publication in the Daily Mail newspaper of various extracts from the travel journals of the Prince of Wales.  They recorded his opinions and experiences of a tour relating to the handover of Hong Kong to the Chinese and were subsequently given limited distribution (they were passed through his staff to various friends) on a confidential basis.  The journals were leaked by a former employee who was bound by an express contractual duty of confidence.  The Court of Appeal could therefore view the case as a “traditional” breach of confidence action.

It was accepted by the court that the Prince had an expectation of privacy and confidence in respect of his travel journals.  His Article 8 rights were therefore engaged.  The interesting features of this case were the arguments in relation to the newspaper’s Article 10 rights and public interest.  The Court emphasised that it was not enough that the information was a “matter of public interest.”  Where, as was the case here, the information in question had been received in confidence, the question was whether, “in all the circumstances, it is in the public interest that the duty of confidence should be breached.”

The Court of Appeal considered the question of the public interest on the facts, noting simply that it agreed with the Trial Judge’s conclusion. 

CC v AB (High Court)(1)

In this case Mr Justice Eady granted an injunction to prevent a husband from disclosing through the media details of an adulterous relationship which had taken place between his wife and another (married) man.  Interestingly, Eady J held that there was a “legitimate expectation of privacy” in an adulterous relationship and that it was necessary to have an “intense focus” on the facts of the case and the competing Article 8 and 10 rights before applying the proportionality test. 

Eady J imposed an injunction to restrain disclosure by the Defendant (the wronged husband) to the media (though he was entitled to discuss the matter with friends and relatives and doctors or counsellors).  The Claimant was entitled to an injunction in respect of harassment as an alternative.

This outcome may seem surprising (or even objectionable) on the facts.  In reality the decision involved a straightforward balancing act between the Claimant’s Article 8 rights and the Defendant’s Article 10 rights.  The aggrieved husband’s motive (in exercising his Article 10 right to freedom of expression) was really to exact revenge on the adulterer by selling private information to the tabloids.  This did not show him in a favourable light.  Furthermore, neither of the parties to the (adulterous) relationship wanted it revealed.  The evidence that the Claimant’s wife was suicidal and the impact the disclosure would have on his family life (including his children) was considered and no doubt added weight to his Article 8 rights.

X&Y v Persons Unknown (High Court)(2)

In this case, two celebrities, a famous model and her husband, obtained a without notice injunction, which was subsequently upheld at a contested hearing, to prevent disclosure of confidential details relating to the state of their marriage. 

As the case involved a celebrity, the court took the time to consider the extent to which someone in the public eye may enjoy a reasonable expectation of privacy.  In particular consideration was given to the effect of previous articles and publicity relevant to the point in question.  The court drew a distinction between a person who is judged to be a “publicity seeker” and someone who, as was found to be the case with the Claimant in this matter, was contractually bound to give interviews to the media in the course of promoting products or services. 

The Claimant was also under a duty of full and frank disclosure as in any “without notice” application and the Court outlined that a Claimant has an obligation to inform the court about the amount and nature of prior publicity.  In terms of what should be disclosed to the court, Claimants’ lawyers should “try to step into the shoes of a hypothetical opponent ” as if representing the media defendants on the other side.

Another factor in this case was the grant of relief against “persons unknown.”  The court indicated that in such cases it is for the claimant to attempt to trace and serve the primary wrongdoer with notice of the application being given to the media if it is intended to serve any order on them.

Murray v (1) Express Newspapers plc (2) Big Pictures (UK) Limited (High Court)(3)

On 7 August 2007 Mr Justice Patten handed down judgment in this case which was heard in the Chancery Division of the High Court.  The Claimant was the infant son of Dr Neil Murray and Mrs Joanne Murray, aka J K Rowling of Harry Potter fame.  Express Newspapers plc (the First Defendant) had settled with the Claimant but the action continued against the Second Defendant, photographic agency Big Pictures (UK) Limited (“BPL”). 

BPL had taken a picture of the Claimant and his parents on a public street in Edinburgh.  The photograph, taken covertly using a long lens, showed the Claimant being pushed in a buggy by his father with his mother alongside.  At the time, the family were unaware the photograph had been taken (ruling out any harassment element to the claim).  The photograph subsequently appeared (on 3 April 2005) in the Sunday Express magazine.  At the time the photograph had been taken the Claimant’s mother was pregnant and the content of the article was linked to motherhood (the baby having since been born). 

The Claimant issued proceedings seeking an injunction to prevent further publication of the photograph or any other or similar photograph of him taken without his consent and damages or an account of profits for breach of confidence, the infringement of his right to privacy and the misuse of private information.  The judge remarked that “I think it is fair to say that it [the claim] is seen by the Claimant’s parents as something of a test case designed to establish the rights of persons in the public eye (such as the Claimant’s mother) to protection from intrusion into parts of their private or family life even when they consist of activities conducted in a public place”.    

BPL issued an application seeking early disposal of the claim.  Their primary defence was that the English courts have refused to recognise a right for an individual not to be photographed in a public place absent some other special circumstance such as harassment, distress caused to a child, or the disclosure through the photograph of some private or confidential information notwithstanding that the picture was taken in a public place. 

The judgment acknowledges the sizeable gap between the approaches of the House of Lords and Strasbourg in such cases.  Patten J expressly acknowledged this stating “the issue is whether and to what extent the application of the principles set out by the House of Lords [in Campbell…] need to be reconsidered or amended in the light of the more recent Strasbourg jurisprudence and in particular the decisions of the ECHR in Von Hannover … and Sciacca”.

In his judgment Mr Justice Patten gave a thorough examination of the Campbell decision (in the House of Lords) before noting the differing approach adopted in Von Hannover.  He then examined post-Von Hannover decisions specifically focusing on the views of the Court of Appeal in McKennitt to decide whether the differing approaches could be reconciled.  With the aid of Lord Justice Buxton’s views on trivia the judge was able to find that there are certain situations which, even following Von Hannover, will be too trivial to attract protection from Article 8.  This case was one of them and therefore there was no need to proceed and carry out the balancing exercise.     

Mr Justice Patten stated “I start with a strong predisposition to the view that routine acts such as the visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy … I have considerable sympathy for the Claimant’s parents and anyone else who wishes to shield their children from intrusive media attention.  But the law does not in my judgment (as it stands) allow them to carve out a press-free zone for their children in respect of absolutely everything they choose to do.  Even after Von Hannover there remains, I believe, an area of routine activity which when conducted in a public place carries no guarantee of privacy”.

Next week we look at the recent Court of Appeal judgment in this case in detail and analyse whether some much needed clarity has finally been achieved.   


1. [2006] EWHC 3083 (QB) (4 December 2006)
2. [2006] EWHC 2783 (QB) (8 November 2006).
3. [2007] EWHC 1908 (Ch)

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at June 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.

About the Author

Davenport Lyons [] is an international business law firm based in the West End of London. The firm has an excellent reputation in areas spanning corporate to property, defamation to intellectual property, music to film finance and digital rights to sport.

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Article Published/Sorted/Amended on Scopulus 2009-03-25 19:25:02 in Legal Articles

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