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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A v B & C  EWCA Civ 337 (11th March, 2002)
Cite as:  2 FCR 158,  2 All ER 545,  EWCA Civ 337, 12 BHRC 466,  1 FLR 1021,  Fam Law 415,  HRLR 25,  3 WLR 542,  UKHRR 457,  QB 195,  EMLR 21
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(MR JUSTICE JACK)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE DYSON
|- and -|
|B & C||Respondents|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR ALASTAIR WILSON QC, MR STEPHEN BATE AND MR JEREMY REED (instructed by George Davis Solicitors) appeared on behalf of the First Respondents
THE SECOND RESPONDENT did not appear and was not represented
(AS APPROVED BY THE COURT)
Crown Copyright ©
Lord Woolf CJ: This is the judgment of the Court
i) The consideration of this type of application should generally begin with recognition that what is being considered is an interim application for an injunction. This means that whether any injunction is granted at all is a matter of discretion for the judge, to be exercised in accordance with what are now well-established principles which include the need to establish, as we will explain later, that after a trial it is likely that an injunction would be granted after a substantive hearing, while recognising that the grant or refusal of an interim injunction could well determine the outcome of the entire proceedings.
ii) The fact that the injunction is being sought to protect the privacy of the claimant, and if the injunction is not granted, the claimant may be deprived of the only remedy which is of any value is a relevant consideration. However, this consideration has to be weighed against the defendant’s rights of freedom of expression. Even before the 1998 Act this would have been an important consideration. Its importance has been enhanced by section 12 of the 1998 Act. The relevant provisions of section 12 are:“12. (1) This section applies if the court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –(a) the extent to which –(i) the material has, or is about to, become available to the public; or(b) any relevant privacy code.”(ii) it is, or would be, in the public interest for the material to be published;
iii) As to the word "likely" in section 12(3) useful guidance is provided by Sir Andrew Morritt VC in Imutran Ltd v Uncaged Campaigns Ltd  FSR 20. He said of section 12:
“17. Counsel for the defendants submitted that the requirement of likelihood imposed a higher standard than that formulated in American Cyanamid. I did not understand this to be disputed by counsel for Imutran. He submitted that whatever the standard was his case satisfied it. Theoretically and as a matter of language likelihood is slightly higher in the scale of probability than a real prospect of success. But the difference between the two is so small that I cannot believe that there will be many (if any) cases which would have succeeded under the American Cyanamid test but will now fail because of the terms of s.12(3). Accordingly I propose to apply the test of likelihood without any further consideration of how much more probable that now has to be.”There is no conflict between section 12 (3) and the Convention. (See Douglas v Hello! Ltd  QB 967; Keene LJ paragraph 150)
iv) The fact that if the injunction is granted it will interfere with the freedom of expression of others and in particular the freedom of the press is a matter of particular importance. This well-established common law principle is underlined by section 12 (4). Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. Here we would endorse the approach of Hoffmann LJ in R v Central Independent Television PLC  Fam 192 at p.201-204, where he said:“publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what Judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which Government and Judges, however well motivated, think should not be published. It means the right to say things which “right thinking people” regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute… the principle that the press is free from both Government and judicial control is more important than the particular case.”
v) The fact that under section 12 (4) the court is required to have particular regard to whether it would be in the public interest for the material to be published does not mean that the court is justified in interfering with the freedom of the press where there is no identifiable special public interest in any particular material being published. Such an approach would turn section 12 (4) upside down. Regardless of the quality of the material which it is intended to publish prima facie the court should not interfere with its publication. Any interference with publication must be justified.
vi) It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection. This means that at first instance it can be readily accepted that it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving the infringement of privacy.
vii) Furthermore in the majority of cases the question of whether there is an interest capable of being the subject of a claim for privacy should not be allowed to be the subject of detailed argument. There must be some interest of a private nature which the claimant wishes to protect, but usually the answer to the question whether there exists a private interest worthy of protection will be obvious. In those cases in which the answer is not obvious, an answer will often be unnecessary. This is because the weaker the claim for privacy the more likely that the claim for privacy will be outweighed by the claim based on freedom of expression. The advantage of not having to distinguish between acts which are public and those which are private in a difficult case is made clear by what Gleeson CJ had to say on the subject in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd  HCA 63. He explained the difficulty of distinguishing between public and private information when he said at para. 42:“ There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”
viii) The same is true in cases in which the public interest in publication is relied on to oppose the grant of an injunction. We have already made clear that even where there is no public interest in a particular publication interference with freedom of expression has to be justified. However, the existence of a public interest in publication strengthens the case for not granting an injunction. Again in the majority of situations whether the public interest is involved or not will be obvious. In the grey area cases the public interest, if it exists, is unlikely to be decisive. Judges should therefore be reluctant in the difficult borderline cases to become involved in detailed argument as to whether the public interest is involved. In a borderline case the application will usually be capable of being resolved without deciding whether there is a public interest in publication. In any event, the citation of authority is unlikely to be helpful. The circumstances in any particular case under consideration can vary so much that a judgment in one case is unlikely to be decisive in another case, though it may be illustrative of an approach.
ix) The need for the existence of a confidential relationship should not give rise to problems as to the law. The difficulty will be as to the relevant facts. A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected. (See Lord Goff of Chieveley, in Attorney General v Guardian Newspapers Ltd [No. 2]  1 A C 109 at 281.) The range of situations in which protection can be provided is therefore extensive. Obviously, the necessary relationship can be expressly created. More often its existence will have to be inferred from the facts. Whether a duty of confidence does exist which courts can protect, if it is right to do so, will depend on all the circumstances of the relationship between the parties at the time of the threatened or actual breach of the alleged duty of confidence.
x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified. (See the approach of Dame Elizabeth Butler-Sloss P. in Venables v Newsgroup Newspapers Ltd  1038 at para. 81) The bugging of someone's home or the use of other surveillance techniques are obvious examples of such an intrusion. But the fact that the information is obtained as a result of unlawful activities does not mean that its publication should necessarily be restrained by injunction on the grounds of breach of confidence (see the Lenah Game decision). Dependent on the nature of the unlawful activity there may be other remedies. On the other hand, the fact that unlawful means have been used to obtain the information could well be a compelling factor when it comes to exercising discretion.
xi) More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other's right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. Here the conflict between one party’s right to privacy and the other party’s right of freedom of expression is especially acute. In situations where the parties are not married (when they are, special considerations may arise) the fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.
xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 116 5 of 1998. We set out paragraphs 6, 7, 8, 9, 10, 11 and 12 which are in these terms:“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know about public figures.9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.”
xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others. If there is not a sufficient case for restraining publication the fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable is not relevant. If the contents of the publication are untrue the law of defamation provides prohibition. Whether the publication will be attractive or unattractive should not affect the result of an application if the information is otherwise not the proper subject of restraint.
xiv) Section 12 (4) requires the court to take into account "any relevant privacy code" but it is only one of a number of factors to be taken into account. The Press Complaints Commission Code of Practice provides that:“It is essential to the workings of an agreed code that it be honoured not only to the letter but in the full spirit. The code should not be interpreted so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it prevents publication in the public interest.Privacy(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent.(ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.Note – Private places are public or private property where there is a reasonable expectation of privacy.HarassmentThey must not photograph individuals in private places (as defined by the note to clause 3) without their consent; must not persist in telephoning, questioning, pursuing or photographing individuals after having been asked to desist; must not remain on their property after having been asked to leave and must not follow them.The public interest1. The public interest includes:(i) Detecting or exposing crime or a serious misdemeanour.(ii) Protecting public health and safety.(iii) Preventing the public from being misled by some statement or action of an individual or organisation.”
Courts may well find this statement of practice of assistance. While recognising that section 12 (4) was primarily concerned with preserving the freedom of the press regard should be had to the guidance given by Lord Justice Brooke in Douglas v Hello! Ltd at paragraph 94, where he says;“94. It appears to me that the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts clause 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by article 10(2) considerations of privacy. Unlike the court in Kaye v Robertson  FSR 62, Parliament recognised that it had to acknowledge the importance of the article 8(1) respect for private life, and it was able to do so untrammelled by any concerns that the law of confidence might not stretch to protect every aspect of private life.”
xv) However, the court should discourage advocates seeking to rely on individual decisions of the Press Commission which at best are no more than illustrative of how the Press Commission performs its different responsibilities.
• The law affords the protection of confidentiality to facts concerning sexual relations in marriage (Argyll v Argyll  Ch 302) and in the context of modern sexual relations, it should be no different outside marriage (para 56);
• It was a breach of confidence for C and D to provide information about their sexual relationships with A to B with a view to publication and it would be a further breach of confidence for B to publish the information (para 59);
• There is a substantial distinction between communication of information to family and friends and communication of information to the press (para 60);
• Aspects of A’s relationships with C and D were conducted in public, but the fact that they were having sexual intercourse and the detail of that intercourse were not known by anyone other than the participants. The information is therefore not in the public domain and is capable of protection (para 63);
• Section 12(4) of the Act 1998 requires the court to have particular regard to the importance under the ECHR of Article 10 (para 64);
• Article 10(2) places restrictions on freedom of expression which includes breach of confidences. Any such restriction must be necessary in a democratic society, inter alia, for the protection of the rights of others, or for preventing the disclosure of information received in confidence (para 65);
• In this case A has a right to respect for his private life. C and D as participants have not received information in the literal sense, but giving the words a purposive construction in the light of Article 8(1), they are to be treated as having received the information as the events occurred (para 65);
• There is a pressing social need for protection of a person’s private life (para 66);
• There is no countervailing public interest in the publication of the proposed articles by B. The public interest is to be interpreted in the sense of being in the interests of the public, approximating to public benefit. A is only a public figure to the extent that he is a professional footballer. He has not courted publicity or laid his life open to public scrutiny (para 67);
• In accordance with the judgment of Brooke LJ on the application of s12 (4) of the 1998 Act and Article 10 in Douglas v Hello!  QB 967 A is likely to succeed at trial in establishing that his right to privacy should prevail over the newspaper’s right to freedom of expression;
• The discretion of the court to award an injunction should be exercised;
• In respect of a free-standing right of privacy, in the light of the finding on breach of confidence and Butler-Sloss P’s judgment in Venables v News Group Newspapers Ltd  Fam 430, the views expressed in the first judgment should be revisited and no view is now expressed.
THE PROCEDURAL APPEAL
THE SUBSTANTIVE APPEAL
“2. Until after judgment in this action or further order in the meantime, the First Defendant must not publish or disclose information concerning the facts:
(a) that the Claimant was having sexual relations with C and with D;(b) relating to the sexual intercourse and other private sexual conduct which occurred with C and with D.
3. Until after judgment in this action or further order in the meantime, the Second Defendant must not publish or disclose any of the said information to any person with a view to its publication in the media.”
i) Jack J makes no reference to the fact that any interference of the court by way of an injunction has to be justified. His approach is to assume that, as A has a right to privacy with regard to his relationship with C and D, it is in order to restrain the proposed publications unless B can show that there is a public interest in what it is proposed to publish.
ii) Jack J (paragraph 56) appears to regard A as being entitled to the same protection in respect of his transient relationships with C and D as would be available to facts concerning “sexual relations within marriage”. Thus Jack J states, undoubtedly correctly, that confidentiality applies to facts concerning sexual relations within marriage but then adds that “in the context of modern sexual relations, it should be no different with relationships outside marriage”. This approach is objectionable because it makes no allowance for the very different nature of the relationship that A had, on his own account, with C and D from that which would exist within marriage. Quite apart from the recognition which the law gives to the status of marriage, there is a significant difference in our judgment between the confidentiality which attaches to what is intended to be a permanent relationship and that which attaches to the category of relationships which A was involved with here. We would refer here to a judgment of Ouseley J, Theakston v MGM Limited  EWHC 137 (QB) paras 59 and 60:“59. I consider it impossible however to invest with the protection of confidentiality all acts of physical intimacy regardless of circumstances. I consider it artificial to draw a line at full sexual intercourse in the context of confidentiality, such that anything short of that is not confidential. Whilst the degree of intimacy is a very relevant factor, it cannot be taken in isolation from the relationship within which the physical intimacy occurs and from the other circumstances particularly the location. I do consider Jack J is right to point out that the protection of confidentiality in relation to any particular set of circumstances is also affected by the nature of the person to whom disclosure is proposed to be made, whether to partner, friend or lawyer or to the press for wider publication. The impact of disclosure on others, for example the children of a relationship may also be relevant to the very existence of confidentiality.60. Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away.”
iii) Furthermore, although again we would not go so far as to say there can be no confidentiality where one party to a relationship does not want confidentiality, the fact that C and D chose to disclose their relationships to B does affect A’s right to protection of the information. For the position to be otherwise would not acknowledge C and D’s own right to freedom of expression.
iv) Jack J (paragraph 59) did not apparently regard a disclosure by C and D to their friends as being objectionable but only publication to the media. This approach ignores the importance to be attached to a free press.
v) Jack J also appears in his first judgment to have been influenced by the need to not only protect A but his family as well. At the end of his judgment, he states “but if it is published the damage to the claimant and his family is done and will be difficult to quantify in terms of money”. The judge should not, in our view, assume that it was in the interests of A’s wife to be kept in ignorance of A’s relationships. This is an issue on which the court is not in a position to reach a judgment.
vi) Again Jack J rejected any question of there being a public interest in B’s proposed publications. Ignoring, as one must, the literary quality of what it was proposed to publish, it is not self-evident that how a well-known premiership football player, who has a position of responsibility within his club, chooses to spend his time off the football field does not have a modicum of public interest. Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example. While Jack J was right to say on the evidence which was before him that A had not courted publicity, the fact is that someone holding his position was inevitably a figure in whom a section of the public and the media would be interested.