This is the most topical of the case law sections – the unfolding telephone hacking scandal at News International leading to the demise of the Sunday tabloid the News of the World, the revealing of the name of the Manchester United footballer Ryan Giggs (he was not alone by any manner of means – see John Terry saga etc) as a serial adulterer on social network sites despite a court injunction prohibiting his identification raised serious issues about whether in fact a viable law of privacy was a practical possibility in the age of the social network site (see CTB v News Group [2011] EWHC 1232. 1308 and 1326 and also TSE v News Group [2011] EWHC 1308 & MJN v News Group [2011] EWHC 1192) In the meantime the media were vocal in their criticism, particularly of Eady J, of creating a judge made privacy law – though in fact  the judges were merely applying Strasbourg and House of Lords (now the Supreme Court) jurisprudence – though one might criticize the application to particular facts of the law in some cases – it was hardly the ‘creation’ by Eady J and others of a draconian privacy law. The cases below are merely a selection of a rich case law.

BREACH OF CONFIDENCE – PRIVACY – INTERIM INJUNCTION – MEDIA WANTING TO PUBLISH DETAILS OF AFFAIR – ALLEGING AFFAIR WAS CAUSE OF DISMISSAL OF ONE OF PARTIES FROM MEDIA GROUP IN WHICH COUPLE EMPLOYED – BALANCING OF INTERESTS – INTERESTS OF WIFE AND CHILDREN – ETK V NEWS GROUP [2011] EWCA Civ 439

K, a married man, who worked in the entertainment industry began a sexual relationship with a colleague – which was obvious to their work colleagues and K’s wife found out and the affair ended. X was then dismissed by the entertainment group that employed them both and news of this fact leaked to News Group who sought to argue that the reason for the dismissal was the affair. The trial judge refused to grant an interim injunction but the Court of Appeal upheld K’s appeal and held that his rights, those of his wife and children and of X, who also opposed publication of the information, outweighed the media’s Article 10 rights. Particular emphasis was laid on the interests of the children of K and the effect the publication would have on them.

BREACH OF CONFIDENCE – PRIVACY – INTERIM INJUNCTION – S12 HUMAN RIGHTS ACT 1998 – ARTICLE 8 ECHR 1950 – FAMILY DISPUTE WHETHER CLAIMANT ENTITLED TO INTERIM INJUNCTION TO KEEP SECRET DETAILS OF A ‘SECOND FAMILY’ IN DISPUTE WITH MEMBER OF FIRST FAMILY – CHRISTOPHER HUTCHESON V NEWS GROUP [2011] EWCA Civ 808

X, father-in-law of celebrity chef Gordon Ramsey, had been dismissed by GR from the GR Group for alleged misconduct in a widely publicized family feud. X sought an injunction preventing publication of details of a secret ‘second family’ maintained by X. News Group wished to pursue allegations that X had used company funds to support his second family – possibly wrongfully though X strongly denied this he admitted he had used company funds to support the second family. The Judge rejecting an application for an interim injunction held there was a public interest in allowing the family to be named in relation to the allegations of possible breaches of fiduciary duty and misappropriation of funds. The Court of Appeal rejecting X’s appeal stressed that Article 8 could be engaged without it automatically following that the claimant had a reasonable expectation of privacy. The CA emphasized that cases were very fact specific and here the public interest in discussion of the allegations of alleged wrongdoing outweighed the privacy interests, which seemed rather tenuous – particularly since none of the members of the second family had given evidence.

BREACH OF CONFIDENCE – PRIVACY – CONTRA MUNDUM INJUNCTION – PARTIES SETTLING ACTION BY AGREEMENT AND UNDERTAKING – WHETHER CONTRA MUNDUM INJUNCTION COULD BE CONTINUED AGAINST THIRD PARTY MEDIA – OPQ V BJM & CJM [2011] EWHC 1059, Eady J.

O applied for a ‘contra mundum’ injunction to prevent B publishing material about his private life. There was evidence to suggest this publication would affect the health and wellbeing of O’s family. A ‘contra mundum’ (against the world) injunction was then granted and O then informed various news organizations to take advantage of the decisions in A-G v Newspaper Publishing [1988] Ch 333(CA) and A-G v Times Newspapers [1992] 1 AC 191 – so argument of lack of relevant intent and knowledge if injunction breached. The parties then reached a settlement in which B gave an undertaking not to publish any confidential material and the matter was settled without a trial.  Nevertheless O applied for a continuance of the contra mundum injunction to prevent third party publication of the confidential information – Eady J held O’s rights under Article 8 ECHR 1950 prevailed over B’s and the media’s under Article 10 ECHR and to ensure the continued protection of O’s position the contra mundum order would be continued in O’s favour.

BREACH OF CONFIDENCE – PRIVACY – NORWICH PHARMACAL ORDER – DISCLOSURE OF DOCUMENTS IN RELATION TO ILLEGAL INTERCEPTION OF VOICEMAIL IN POSSESSION OF POLICE – HUGH GRANT & JEMINA KHAN v METROPOLITAN POLICE COMMISSIONER Ch D (Vos J) 20 July 2011

Vos J granted Norwich Pharmacal relief and disclosure by the Metropolitan Police Commissioner of documents relating to telephone hacking and illegal interception of their voicemail.  Vos J there was a likelihood that a wrong had been committed by a wrongdoer and there was a need requiring disclosure which would permit proceedings to be brought but it was not necessary at this stage to rule whether the police were involved in the wrongdoing – justice required the disclosure of the information.

BREACH OF CONFIDENCE – PRIVACY – VARIATION OF AN INJUNCTION TO NAME ONE OF PARTIES TO AN AFFAIR AND HER POSITION IN A BANK – GOODWIN V NGN LTD [2011] EWHC 1437 (QB)

Sir Fred ‘The Shred’ Goodwin, a controversial banker at the epi-centre of the so-called ‘credit crunch’ banking crisis in the UK had conducted an extra-marital affair with a female work colleague. The applicant newspaper argued that there was a public interest in disclosing her name and job description – on the grounds it was contrary to the bank’s Corporate Governance Code and that it might have distracted G during what turned out, in retrospect, to be a disastrous take-over of a foreign bank. The judge rejected these allegations but held the woman did not have a right of privacy in relation to the mere fact of the affair but that her job description was relevant to the story and of genuine public interest so he ordered that could be published despite the fact that would almost certainly lead her to be identified by a substantial number of people. 

BREACH OF CONFIDENCE – PRIVACY – INTERIM INJUNCTION – SUPER INJUNCTION – NTULI v DONALD [2010] EWCA Civ 1276

N had an intimate personal and sexual relationship with D a member of the well known pop group ‘Take That’ – D had obtained an interim injunction – in the form which has become known as a ‘super-injunction’ against N prohibiting her from revealing ‘any intimate, personal or sexually explicit details’ of their relationship, pending a full trial of the confidence and privacy issues.  The Court of Appeal upheld the interim injunction on the evidence, but said this did not justify the continued anonymity of the parties or the existence of the injunction. 

Protection from Harassment Act 1997 – s1(3)(a) preventing or detecting crime – Dowson v Chief Constable of Northumbria [2009] EWHC 907(QB) , 30/4/09

Three policemen were suing the Chief Constable of Northumbria for harassment on the basis that he was vicariously liable for bullying and harassing conduct by the Inspector of a detection unit they were part of. One of the defences raised was that the course of conduct was not covered by the act because ‘it was pursued for the purpose of preventing or detecting crime’ within s1(3)(a) of the PHA 1997. The court rejected this argument because none of the alleged actions were directed to solving the crime involved but rather the manner in which the unit conducted the investigation. In the judge’s view to give the section such a wide interpretation would in effect exempt the police service from the scope of the Act.

Protection from Harassment Act 1997 – R v Hooley, Daily Telegraph 24/8/09

Harassment can give rise to both civil and criminal consequences – under s2 a person who pursues a course of conduct which amounts to harassment commits an offence. Keeley Houghton, 18, from the West Midlands was sentenced to 3 months imprisonment for making death threats against another teenager, in part via the social networking website Facebook. She received a 3 month sentence in a Young Offenders Institution and a five month restraining order (see s5 PHA 1997).

www.telegraph.co.uk/technology/facebook/6067897/Teenager-is-first-to-be-jailed-for-Facebook-bullying.html

Data Protection Act 1998 –ss13 & 14 – Quinton v Peirce [2009] FSR 17

The concepts of ‘personal data’, ‘data controller’ and ‘data processor’ are widely defined in the DPA 1998 and claims for wrongful collection, processing, or disclosure of data have featured as ancillary claims in a number of cases involving defamation, privacy, and malicious falsehood. Of course such actions have the capacity to be free-standing and to protection information which is not protectable by a common law action. How far the Act can be used to recover damages in this context was considered by Eady J in Quinton v Peirce [2009] FSR 17. Q a defeated incumbent Conservative councilor in Oxfordshire brought an action against his successful Liberal Democrat opponent and his opponent’s election agent for malicious falsehood and breach of the DPA 1998 in relation to certain claims made in the Liberal Democrat election leaflet – to the effect that he had failed to attend a key planning meeting and to participate in local planning inquiry both relating to controversial proposals for housing development. The judge rejected his claim in respect of malicious falsehood – he had failed to demonstrate malice, dislike was not to be equated with malice – and also he had failed to demonstrate any evidence of financial loss. However of more general importance was the judge’s view in relation to the claim for damages under s13 DPA1998 (for failure to comply with s4 & First and Second Data Principles in Schedule I para I) and for an order to destroy the offending leaflets under s14 DPA 1998. Eady J decided on the facts that the principles of fairness and accuracy had been complied with but he also took the view that it was neither necessary nor proportionate to interpret the Act so as to afford a parallel set of remedies when damaging information had been published about some which was neither defamatory nor malicious. These remarks were obiter and it remains to be seen if a case involving a distinct and free-standing claim would necessarily be decided in the same way given the width of expression in the Act but it could well be argued that to do so would infringe Article 10 as a disproportionate interference of expression during an election campaign.

Article 8 European Convention on Human Rights 1950 – Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 – 7/5/08 – picture of child of famous author taken in public place – action for breach of confidence or misuse of private information – whether child had breach of privacy action in own right given youth and fact long lens photograph would not have impact on feelings of young child – whether English law in line with Strasbourg jurisprudence on photography of celebrities and children in public places without their consent.

The author J.K. Rowling (of Harry Potter fame) and her husband were pushing their 19 month old child, David, in a buggy along an Edinburgh street when a long lens photograph of the family was taken by the respondents – this was later published in the Sunday Express. The photograph showed David's face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. A claim for breach of Article 8 ECHR was brought by his parents on behalf of the child with a subsidiary claim for breach of the Data Protection Act 1998. At first instance, purportedly following Campbell v Mirror Group Newspapers [2004] 2 AC 457, the action had been struck out as there was no right of privacy in relation to a photograph taken in this context. The Court of Appeal considering Campbelland the decision of the ECtHR in Von Hannover v Germany (2005) 40 EHRR 1.

The Court of Appeal stressed the need to focus on fact: this was an action in respect of the child not the celebrity parent. – it was a question of principle and not dependent on any distress or fear caused to the child. The court had to make assumptions and a judgment as to what measure of protection they are entitled to having regard to the way they have led their lives under the control of their parents and any other relevant circumstances – it very much depended on the circumstances and the case should not be struck out but the merits considered by the trial judge. The Court of Appeal took the view in the light of authorities that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. In light of that any competing public interest and freedom of expressions could then be assessed to see whether they outweighed the privacy considerations.

Article 8 European Convention of Human Rights – Moseley v News Group Ltd [2008] EWHC 1777 (QB) 24/7/08 – privacy – whether reasonable expectation of privacy in relation to secret filming of sadomasochism session by one of participants in breach of confidence – was there public interest justification in newspaper publishing details.

In a one of the most salacious and highly publicized privacy cases Max Mosley, President of Federation Internationale de l'Automobile (FIA) and son of the late British fascist leader Sir Oswald Mosley, sued in relation to a sting operation by the News of the World whereby he was filmed by another participant attending a sado-masochistic party or 'orgy''. The News of the World portrayed it as 'F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS'. One of the problems for the News of the World was that the evidence did not really support the Nazi dimension, albeit that a number of participants spoke in German. (indeed Mr. Mosley is suing separately for defamation on this point). The judge carried out the intense focus on the respective interests represented in Articles 8 & 10 ECHR 1950 (applying Campbell v Mirror Group [2004] 2 AC 457, McKennitt v Ash [2008] QB 73 & Re S (A Child) [2005] 1 AC 593).

He came to the view that Mr. Mosley had a reasonable expectation of privacy and that there had been a clear and knowing breach of confidence. The judge concluded that there were no strong countervailing public interest requirements which prevailed over the privacy interest of the claimant. Certainly the judgment reflects a more broadminded approach to people's personal sexual proclivities even where, as here, the claimant was married and had seemingly not informed his wife of these activities which had gone on for over 20 years and whether the sex was paid for or not (one could imagine the late Lord Denning MR would almost certainly have concluded that this involved iniquity and should be disclosed?).

Indeed, at para 111 Eady J states: 'will [it] always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone's home, for example, in order to catch him or her smoking a spliff? Surely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than proportionate.'

The judge did take the view that, if the Nazi dimension had been demonstrated it would, given Mosley's position, in the public interest to disclose the video.

The view might be taken that it also shows a more realistic approach as to whether, what might be regarded as sexual deviant activity, in any way affects the carrying out of a public role such as President of the FIA – apart from the obvious embarrassment factor it is difficult to see how these activities have any bearing on running Grand Prix and other related motoring events. The judge also focused on the particularly intrusive nature of visual images.
Interestingly the judge considered obiter that one factor which might come into play was whether the journalists had acted in line with the criteria of 'responsible journalism' - one of the twin requirements for the Reynolds defence in the law of defamation. Here the judge concluded that the behaviour of the journalists did not reach this standard.

Once again the moral is that in any event the newspaper must be careful not to exaggerate and over-egg the pudding as here by the addition of the strong Nazi claims which could not be borne out in light of the actual evidence. The judge, however, refused to award the claimant exemplary damages – the action was currently characterized as an equitable action for breach of confidence and exemplary damages had not been awarded in this area and to extend them to this area and would not be necessary or proportionate. The judge awarded the claimant £60,000 damages.

European Convention on Human Rights – Article 8 – H v Tomlinson [2008] EWCA Civ 1258, 13/11/08

The respondent, H, suffered from Asperger’s Syndrome, also had an obsessional compulsive disorder, and had had behavioural problems. H was excluded from school and his expulsion upheld by the School Governors and then reviewed by a statutory appeal panel. In connection with this hearing the appellant, the headmaster of the school wrote a report in which he claimed that H had been arrested near his father’s home for violent and dangerous behaviour and asserted that two other school parents had seen him taken away in handcuffs. H, by his next friend, his mother, brought a defamation action. At first instance the court accepted the appellant’s plea of justification – on the defamation issue the Court of Appeal ruled that even if the statement were false and defamatory H would suffer to harm as his reputation was already such that these fresh allegations even if false would do him no material damage. H then sought to add claims for breach of confidentiality and privacy based on Article 8 that there had been an infringement of his human right to privacy and protection of his family life. The Court of Appeal ruled that the claim should be struck out as showing no realistic prospect of success – the alleged arrest was a matter within the public domain and reasonably capable of being deployed in a panel hearing about a school expulsion where his violent  behaviour was a central issue. He could not fairly and reasonably expect, given his history, that the information connected to this alleged arrest should not be made public – the fact that the incident occurred near his home did not turn it into a private matter. The arrest and removal were matters clearly in the public domain. The case however demonstrates the increasing tendency to use the protean confidentiality/misuse of private information action and Article 8 to try and resuscitate actions which might have failed in other actions such as defamation.

European Convention for Human Rights 1950 – Articles 8 & 10 – P, Q & R v Mark Gerard Quigley [2008] EWHC 1051 (QB) Eady J, 16/5/08

The applicants, P and Q were spouses and Q was formerly director and chief executive of the third applicant a company R. The defendant was a former employee of R who had been subject to criminal proceedings on grounds that he had illegally diverted business from R – however they were abandoned because of the state of the defendant’s mental health. The defendant then sued for malicious prosecution in an action that was settled. The defendant now intended to publish a fictional work, a novella, in which the three applicants would appear in a very thinly disguised form and which had the characters involved in highly unsavoury, distasteful and fictitious sexual activities. The applicants sought a permanent injunction on the grounds of breach of their privacy rights under Article 8 ECHR 1950 – the defendant argued such a permanent injunction would be an unjustified and disproportionate interference with his freedom of expression rights under Article 10 ECHR 1950. The judge granted the injunction after weighing up the respective interests – there was little or no public interest in making what were on any characterisation scurrilous allegations and against clearly recognisable individuals albeit they were dressed up as fictional characters. The allegations were embarrassing and distressing and an unwarranted intrusion into the husband and wife’s private life – even though the accusations themselves were ostensibly imaginary. The company’s application was not dealt with as this was based on breach of contract and not Article 8 privacy rights.

European Convention on Human Rights Articles 8 &10 – Human Right Act 1998 s12(3) – BKM Ltd v BBC [2009] EWHC 3151 (Ch), Mann J, 2/12/09

With advances in technology and mini-cameras the practice of ‘secret filming’ has become much more common and it is an effective weapon in broadcasters’ exposé programmes. Broadcasters have of course to comply with internal procedures and the OFCOM Broadcasting Code in this respect. However OFCOM procedures do not provide for prior restraint and if a person or a company affected by such filming wants to prevent it going out they have to seek an interim injunction. This was the situation in the case of BKM Ltd v BBC. This case involved filming in a care home – the usual ploy of getting someone to take a job at the home and to allegedly expose serious and significant failings in the care regime. The home based the claim for an interim injunction on the breach of the residents’ privacy. The BBC assured the court that they would take steps to prevent individual residents being identified and that they had complied with OFCOM procedures in relation to secret filming. The judge concluded that the BBC’s Article 10 rights outweighed the Article 8 privacy rights of the residents in the light of the protection given to them and the serious public interest issues involved.

Euroepan Convention on Human Rights Article 8 – LNS v Persons Unknown [2010] EWHC 119(QB), Tugendhat J, 29/1/2010

This case was an ultimately futile attempt by the Chelsea and England footballer to maintain in force the confidentiality and privacy of his extra-marital relationship with the girlfriend of an England team-mate. The fallout was his loss of the England captaincy and a positive deluge of press publicity. In footballing circles the information was already fairly widely known; the crux of the case was the seeking of the publication to the wider public and importantly the prevention of valuable sponsorship arrangements (the Tiger Woods Affair shows how quickly these can evaporate when a carefully constructed image is destroyed by revelations what of the public may consider to be morally reprehensible behaviour). A preliminary ‘super-injunction’ had been granted – further exciting press concerns about these draconian injunctions preventing in effect all reporting of legal cases. Issues relating to open justice, privacy under Article 8 ECHR, and freedom of expression under Article 10 were raised. The judge applying orthodox principles decided that the injunction should be lifted – damages would be an adequate remedy and it would not be just or proportionate to maintain the injunction. The judge emphasized that conduct did not need to be unlawful to justify publication and criticism by the media. Again the judge appears to be influenced by the fact that the real objective was not necessarily the protection of his ‘sponsorship’ image – in effect maintenance of economic publicity rights.