![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Associated Newspapers Ltd v HRH Prince of Wales [2006] EWCA Civ 1776 (21 December 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1776.html Cite as: [2007] Info TLR 267, [2008] EMLR 121, (2007) 104 LSG 30, [2006] EWCA Civ 1776, [2008] Ch 57, [2007] 2 All ER 139, [2008] EMLR 4 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2008] Ch 57]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
THE MASTER OF THE ROLLS
and
THE RIGHT HONOURABLE LORD JUSTICE MAY
____________________
![]() ![]() |
Appellant |
|
- and - |
||
His Royal Highness the Prince of Wales |
Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
H. Tomlinson QC and L. Lane (instructed by Messrs Harbottle & Lewis) for the Respondent
____________________
Crown Copyright ©
Lord Phillips of Worth Matravers, Chief Justice
This is the judgment of the Court
Introduction
The facts
The approach to the law
"The modern starting point in a claim of this kind is the decision of the House of Lords in Campbell v MGNLtd
[2004] UKHL 22; [204] 2 AC 457."
Counsel for each of the parties proceeded on the premise that this statement was correct. This led them to approach the case as though there were only two significant issues: (1) was the subject matter of the Journal 'private' so that the Newspaper's publication of it interfered with Prince Charles' rights under Article 8(1) of the Convention? If so (2) was the Newspaper's publication nonetheless justifiable under Article 8(2) as being necessary for the protection of the Article 10 rights of the Newspaper and of the public? In short the essential issue in this case was a conflict between the rights under Article 8 and Article 10 of the Convention.
"Now the law imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase "duty of confidence" and the description of the information as "confidential" is not altogether comfortable. Information about a person's private life would not, in ordinary usage, be described as "confidential". The more natural description today is that the information is private. The essence of the tort is better encapsulated now as misuse of private information."
Were the journals confidential and was their content private?
"It seems to us that information will be confidential if it is available to one person (or a group of persons) and not generally available to others, provided that the person (or group) who possess the information does not intend that it shall become available to others."
Dealing at paragraph 83 of the same case with the issue of privacy, the court said:
"What is the nature of "private information"? It seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria"
"Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy"
Lord Hope of Craighead at paragraph 85 advanced a similar test:
"…a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected."
Lady Hale at paragraph 134 advanced the same test and Lord Carswell at paragraph 165 endorsed this.
i) the subject of the Journal consisted of events that were in the public domain;
ii) the relaxed way in which the journals were treated and the width of their circulation belied an expectation that they would remain private;
iii) having regard to the nature of the content of the Journal any expectation of privacy on the part of Prince Charles was unreasonable.
The impact of Article 10 on an action for breach of confidence.
"51 The result of these developments has been a shift in the centre of gravity of action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello!Ltd
[2001] QB 967, 1001, the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.
52 These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and circumstances in which publication can be justified.
53 In this case, however, it is unnecessary to consider these implications because the cause of action fits squarely within both the old and the new law."
"(i) Freedom of Expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.
(ii) The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation.
(iii) As a matter of general principle, the 'necessity' for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a 'pressing social need' for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases, such as the present one, concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued."
"The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of 'watchdog' in a democracy by contributing to 'impart[ing] information and ideas on matters of public interest' it does not do so in the latter case."
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."
"..although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure."
"…this is not a case where some employee is seeking to pass confidential information to someone else for commercial gain, or where someone is trying to use confidential material to steal a march on a commercial rival. What the defendants seek to do is to disclose matters which are of genuine public concern…this is a most exceptional case. It could not properly be described as the normal run-of-the-mill breach of confidence case, whether it is in breach of an implied duty of confidence or an express duty of confidence contained in an agreement…"
"No authority has been cited to the court establishing that an apparent breach of a contractual duty of confidence is more serious, and is to be approached differently (as regards injunctive relief) than other apparent breaches the court adopts the same approach to both."
"…in the absence of any meaningful threatened breach of confidentiality, that it is unlawful by virtue of section 6(1) of the Human Rights Act 1998 for either claimant to seek, whether by contract or lawsuit, to interfere with Article 10 rights – whether those of the defendant or those of the public".
"I am prepared to acknowledge that a court nowadays might not apply quite so strict a test to that laid down by Ungoed-Thomas J. in Nora Beloff v PressdramLtd [1973] 1 All E.R. 241 at 260:
'…the disclosure justified in the public interest, of matters carried out or contemplated, in breach of the country's security, or in breach of law, including statutory duty, fraud or otherwise destructive of the country or its people, including matters medically dangerous to the public; and doubtless other misdeeds of similar gravity.'
I would nevertheless accept that Mr Browne is broadly correct when he submits that for a claimant's conduct to 'trigger the public interest defence' a very high degree of misbehaviour must be demonstrated. Relatively trivial matters, even though falling short of the highest standards people might set for themselves, will not suffice."
"reverts to a more elemental enquiry into a breach of confidence in the traditional understanding of that expression. That does not of course exempt the court from considering whether the material obtained during such a relationship is indeed confidential; but to enquire into that latter question without paying any regard to the nature of the pre-existing relationship between the parties, as the argument for the appellant in this court largely did, is unlikely to produce anything but a distorted outcome."
"The Judge accordingly approached, and correctly approached, his consideration of the passages complained of against the background of a pre-existing relationship of confidence, known to be such by Ms Ash, while at the same time not assuming that that covered everything that happened between the two women with the cloak of confidence."
Later, at paragraph 43, he remarks that the provision of the written contract did not add much to the obligations that the first defendant owed in equity by reason of the closeness of her personal relationship with the claimant.
Discussion
"One is the long-standing cause of action …under which remedies are available in respect of use or disclosure where the information has been communicated in confidence. Subject to possible 'trivia' exceptions and to public interest (iniquity) defences, those remedies are available irrespective of the 'offensiveness' of the disclosure. The second gives a right of action in respect of publication of personal information of which the subject has a reasonable expectation of privacy irrespective of any burden of confidence"
"We consider that it is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the right of freedom of expression, than a duty of confidence that is not buttressed by express agreement"
We adhere to this view. But the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case.
Conclusions
"Not the least of the considerations that must be weighed in the scales is the claimant's countervailing claim to what was described in argument as "his private space": the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest. The fact that the contents of the Hong Kong Journal are not at the most intimate end of the privacy spectrum does not, to my mind, lessen the force of this countervailing claim. The claimant is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own "human autonomy and dignity" as is any other."
Copyright
"Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that … it is accompanied by a sufficient acknowledgment."
"Fair dealing with a work for the purpose of criticism or review… does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including –
(a) the issue of copies to the public…"
The judge rejected this defence on the ground that the Newspaper could not establish that the Newspaper's publication related to a work that had been "made available to the public".