2 Privacy and breach of confidence|
9. Until 2000, private information could only be
protected under English law by recourse to legal remedies such
as breach of confidence (see paragraphs 103 to113 below), contempt
of court, defamation, malicious falsehood, trespass and nuisance.
10. On several occasions in the past half-century,
Parliament considered introducing a general law of privacy. Bills
were introduced in 1961
and 1969, but neither
went beyond a second reading. In 1989, after two private members'
bills concerning privacy completed the House of Commons Committee
stage, the Government of the day asked Sir David Calcutt QC to
conduct an inquiry. Sir David's report, Privacy & Related
Matters, recommended that the media should set up a complaints
body but warned that, if this did not prove effective, a statutory
tribunal should take its place.
In 1992, Sir David reviewed the work of the new Press Complaints
Commission and concluded that it had failed and a privacy law
was required. His proposal was not taken up.
Instead, in 1995 the then Secretary of State for National Heritage,
Virginia Bottomley MP, announced that the Government would focus
on improving self-regulation.
Important change came when Parliament passed the Human Rights
Act 1998, which came into force in 2000 and, in effect, incorporated
the European Convention on Human Rights (ECHR) into UK law.
11. Before we pass on to considering the impact of
the Human Rights Act, it should be noted that the approach to
privacy law in the UK both before and since 2000 stands in contrast
to the approach elsewhere in Europe. In France, for example, the
right to privacy is held to be implicit in the constitution,
and the French Civil Code has included a specific right to privacy
since 1970. Rights
to control over personal information have been strictly interpreted
by the French courts.
In Germany, meanwhile, the Federal Constitutional Court has recognised
the citizen's right to personal respect, including a right to
control one's own image in private life. A German court held that
the publication of photographs of Princess Caroline of Monaco
with her children breached her constitutional rights.
In Italy recently, too, Prime Minister Silvio Berlusconi has had
recourse to privacy laws over the use by Italian and Spanish publications
of photographs taken at private parties he held, which were allegedly
attended by escort girls.
12. Privacy laws tend to reflect the media cultures
in which they operate, and, as we were reminded during our visit
to Spain, these can be very different from the UK's. Staff at
La Vanguardia told us that their newspaper would
publish a story about a footballer having an extra-marital affair,
but not a story about a politician having an affair. They explained
that this was because the footballer's professional performance
might be affected while the politician's would not, and also because
readers would not be interested in a politician's affairs. The
same news values do not apply in Britain.
The Human Rights Act
13. In passing the Human Rights Act, Parliament did
not introduce specific rights for individuals into UK law, but
required public authorities, including courts and tribunals, to
act in accordance with the rights set out in the European Convention
on Human Rights of 1950.
Parliamentary sovereignty over Convention rights was retained,
since public authorities are protected if an action contravening
Convention rights is giving effect to, or trying to give effect
to, primary legislation.
14. The Convention guarantees to everyone a right
to privacy and a family life through Article 8, and the right
to freedom of expression through Article 10.
15. Article 8 states:
|1. Everyone has the right to respect for his private and family life, his home and his correspondence. |
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
16. Article 10 states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
17. No one Convention right has priority over another,
so when a conflict arises between the Convention rights of the
parties in a case, the courts are required to carry out a balancing
18. The balance was explored by the courts, notably,
in the case of Campbell v Mirror Group Newspapers which
was decided in 2004.
The model Naomi Campbell was photographed leaving a Narcotics
Anonymous meeting. The Daily Mirror published the photographs
together with (inaccurate) details of Ms Campbell's treatment
and history of drug addiction. In the subsequent court case, it
was accepted by both sides that Ms Campbell's repeated 'public
lies' that she did not have a drug addiction justified reporting
evidence to the contrary. Article 8, however, was held to apply
to the details of her treatment, as she had a 'reasonable expectation'
that these would remain private.
19. The balance was further explored in Douglas
v Hello! Ltd. (No. 3) from 2005, in which the House of Lords
held that the actors Catherine Zeta-Jones and Michael Douglas
had a right to protect private information, specifically photographs
of their wedding. In His Royal Highness the Prince of Wales
v Associated Newspapers Ltd in 2006,
the Court of Appeal found that Article 8 covered a travel journal,
written by the Prince of Wales, which had a reasonably wide circulation.
The Court rejected the newspaper group's argument that there was
a public interest in publishing comments contained in the diaries
on the Chinese politicians and officials at the handover dinner
in Hong Kong in 1997.
20. Judges have continued to stress the importance
of Article 10. In his judgment in Jameel v Wall Street Journal
in 2006, Lord
"The central importance of this Article
in the Convention regime is clear beyond question [...]. Freedom
to publish free of unjustifiable restraint must indeed be recognised
as a distinguishing feature of the sort of society which the Convention
seeks to promote."
SECTION 12 OF THE ACT
21. The potential difficulties in balancing the right
to privacy and the right to freedom of speech were apparent at
the time the Human Rights Bill was before Parliament, and the
media and the judiciary both raised concerns about them. The then
Lord Chief Justice, Lord Bingham, said during the passage of the
"Discussion of the new Bill so far would
suggest, I think rightly, that one of the most difficult and sensitive
areas of judgment will involve reconciliation of the right of
privacy guaranteed by Article 8 with the right of free expression
guaranteed by Article 10. While the law up to now afforded some
protection to privacy (in actions for breach of confidence, trespass,
nuisance, the new tort of harassment, defamation, malicious falsehood
and under the data protection legislation) this protection has
been patchy and inadequate. But it seems very likely that difficult
questions will arise on where the right to privacy ends and the
right to free expression begins. The media are understandably
and properly concerned that the conduct of valuable investigative
journalism may be hampered or even rendered impossible. It is
very difficult, and probably unwise, to offer any opinion in advance
about where the line is likely to be drawn."
22. In response to such concerns, Lord Wakeham introduced
in the House of Lords an amendment which became section 12 of
the Human Rights Act, as follows:
|12 (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. |
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(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
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section -
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings).
23. The intention was to set a higher bar for the
granting of injunctions that might impact on freedom of expression.
While someone applying for an interim injunction in any other
type of civil case is only required to show that there is a 'serious
issue to be tried', section 12(3) above requires the claimant
to have a case 'sufficiently favourable to justify [an injunction]
in the circumstances of the case'.
This has been interpreted by the courts as meaning that claimants
must show that they have a better than 50 per cent chance of success
if the matter were to come to trial.
24. During the passage of the bill the then Home
Secretary, the Rt Hon Jack Straw MP, was confident that this would
provide an adequate safeguard to the press: "[section 12
will] send a powerful signal to the United Kingdom courts that
they should be at least as circumspect as judgments of the European
Court of Human Rights have been about any action that would give
the article 8 rights any supremacy over the freedom of expression
rights in article 10. I hope and believe that an amendment along
those lines will deal satisfactorily with the concerns of the
25. He also felt that section 12 would benefit the
self-regulatory system: "[it] provides an important safeguard
by emphasising the right to freedom of expression. Our intention
is that that should underline the consequent need to preserve
self-regulation. That effect is reinforced by highlighting in
the amendment the significance of any relevant privacy code, which
plainly includes the code operated by the PCC."
SECTION 12 IN PRACTICE
26. We have heard varying opinions on the impact
of section 12, both on the balance between Articles 8 and 10 required
by the courts and on the use of injunctions. Marcus Partington
of the Media Lawyers Association told us:
"I think section 12 has failed to do what
Parliament intended it to do; which was clearly that the courts
were to give freedom of expression a greater stress than they
actually have. The truth is now, we believe, that it is very easy
to get through the Article 8 doorway, but it is much harder
to defend something in Article 10 terms."
27. Rod Christie-Miller of Schillings solicitors
had reservations about the operation of section 12, but acknowledged
the difficulties inherent in the decision to grant an injunction:
"Personally, acting for claimants, I think
the judges have made individual decisions which I would rather
they had not made. I would rather they were more claimant-friendly
and the media will say exactly the opposite, that they would rather
the judges apply this in a more defendant friendly manner, but
the judges are applying an intense focus on the specific facts
and are deciding whether or not something is likely to be injuncted
at a trial or not."
28. In written evidence to us Professor Julian Petley,
of the Campaign for Press and Broadcasting Freedom, commented
that "the ECHR has had a salutary effect in requiring the
courts to balance competing claims to the right to privacy and
the right to press freedom, with a clear presumption in favour
of the latter."
The Lord Chancellor, the Rt Hon Jack Straw MP, agreed, telling
us that while "they [the media] have concerns about particular
decisions in the courts, not least in the Mosley case,
section 12, as the Master of the Rolls has spelt out, has worked
to their advantage without any question."
29. In oral evidence to us, the then Master of the
Rolls explained the difficulties facing judges making decisions
on interim injunctions:
"section 12 should operate to give judges
great cause for concern before granting it, even late at night
on a Saturday night. It is quite true that, across the board,
generally, for those of us who have been on duty late at night
on a Saturday night when you have been given some terrible story,
in most cases the sensible thing to do is to grant the injunction,
to hold the ring until Monday, because, mostly, the balance of
convenience or the balance of justice is to say, 'Let's decide
that now, and then the thing can be thought out and decided on
30. We have been told, however, that appeals against
the refusal to grant or for the lifting of interim injunctions
may lead to lengthy delays and enormous costs. In May 2009, Ian
Hislop, editor of Private Eye, told us about a case in
which he was involved:
"We attempted to run a story in January
 and we still have not been able to run it. The journalist
involved put it to the person involved, which was an error; there
was an immediate injunction; we won the case; they have appealed;
we are still in the Appeal Court. Essentially it is censorship
by judicial process because it takes so long and it costs so much."
31. The case involved Michael Napier, a former president
of the Law Society, and the refusal by Mr Justice Eady to grant
an injunction, on grounds of confidentiality, about the outcome
of professional complaints made against Mr Napier and his firm.
The Court of Appeal subsequently refused to overturn the ruling,
following which Mr Napier resigned from his position on the Legal
Services Board. Private
Eye estimated that had it lost, the bill for both side's costs
would have been some £400,000; and had the case gone to the
House of Lords, it would have been at risk for £600,000.
The magazine said it had originally intended to publish two paragraphs
on the issue.
32. We understand that the refusal by a court
to grant an injunction does not necessarily mean the defendant
can publish straightaway: if the claimant appeals the decision,
then the Court of Appeal has to hold the ring, pending the outcome
of that appeal. That said, it seems to us wrong that once an interim
injunction has been either refused or granted in cases involving
the Convention right to freedom of expression a final decision
should be unduly delayed. Such delay may give an unfair advantage
to the applicant for the injunction as newspapers often rely on
the currency of their articles. We recommend that the Ministry
of Justice should seek to develop a fast-track appeal system where
interim injunctions are concerned, in order to minimise the impact
of delay on the media and the costs of a case, while at the same
time taking account of the entitlement of the individual claimant
seeking the protection of the courts.
33. We have heard concerns from a number of witnesses
that interim injunctions are frequently applied for out-of-hours,
and are therefore heard by duty judges who may lack specialist
knowledge. Ian Hislop told us: "I have to say if you go for
an injunction in the middle of the night or on a weekend or a
Saturday, you get a judge who does not know a great deal about
this sort of thing and they give the injunction."
34. Paul Dacre, editor of the Daily Mail,
commented, in relation to the News of the World's exposé
of Max Mosley:
"If it had been a Saturday morning you would
have had a part-time judge on who would not be expert in defamation
or privacy. Almost certainly that judge would have granted an
injunction. Almost certainly it would have got bogged down in
the long grass and taken several weeks."
35. Peter Hill, editor of the Daily Express,
had similar concerns: "I can assure you that injunctions
are granted on very flimsy grounds often, not always, but by judges
who are not necessarily highly qualified in that area."
36. A further concern on which we have received evidence
is the apparently growing practice of widely-drawn injunctions
being received by newspapers and other publications, binding them,
though they have had no opportunity to contest the order. These
are unrelated to those regularly granted by the Family Division
of the High Court to preserve the anonymity of children and to
which the press rarely takes issue. From his experience, Mr Hislop
estimated that the courts were issuing new such injunctions about
once a fortnight:
] since the beginning of 2008 Private
Eye has begun to receive a number of privacy injunctions granted
at hearings of which it had no prior notice and designed to prevent
the media generally from publishing allegations about individuals,
usually well-known celebrities. In these instances, Private
Eye has been sent copies of the court order, although it was
not a defendant in the proceedings (orders which are sometimes
made against "persons unknown")."
37. Any meaningful consideration of the impact of
Section 12 on the use of interim injunctions requires a basis
of statistics relating to the number of injunctions granted or
refused and how many claimants are subsequently successful at
trial. It seems that these data do not exist. During our inquiry,
the then Master of the Rolls was able to give us limited information,
but Bridget Prentice, Parliamentary Under-Secretary of State for
Justice, confirmed in response to a written parliamentary question
that the High Court only collects figures on the number of applications
for injunctions, not the outcome of those applications.
Without appropriate data on injunctions we are unable to come
to definitive conclusions about the operation of section 12 of
the Human Rights Act, nor do we believe that the Ministry of Justice
can effectively assess its impact. We recommend that the Lord
Chancellor, Lord Chief Justice and the courts should rectify the
serious deficiency in gathering data on injunctions and should
commission research on the operation of section 12 as soon as
38. We do not overlook the fact that, in Cream
Holdings v Bannerjee, the House of Lords held that the effect
of section 12(3) of the Human Rights Act was that, in general,
no injunction should be granted in proceedings where Article 10
was engaged unless the claimant satisfied the court that he or
she was more likely than not to succeed at trial. Although there
is little statistical evidence available, we are nevertheless
concerned at the anecdotal evidence we have received on this matter.
Section 12 of the Human Rights Act is fundamental in protecting
the freedom of the press. It is essential that this is recognised
by the Courts.
39. It is entirely understandable, as news and
gossip spread fast, that parties bringing privacy (and confidence)
cases may wish to bind the press in its entirety, not just a single
enquiring publication. On the face of it, however, this appears
contrary to the intention behind section 12, if the press has
not been given proper notice and opportunity to contest an injunction.
We recommend, therefore, that the Lord Chancellor and Lord Chief
Justice also closely review these practices.
Max Mosley and the News of
40. On 30 March 2008, the News of the World revealed
that Max Mosley, then president of the Federation Internationale
de l'Automobile (FIA), had engaged in a sado-masochistic sex session
with a number of women.
The front-page headline declared 'F1 Boss has Sick Nazi Orgy with
5 Hookers', and the report, written by chief reporter Neville
Thurlbeck, referred to an 'SS-style medical examination', orders
being 'barked' in German and 'mock death camp' uniforms.
Mr Mosley is the son of Oswald Mosley, founder of the British
Union of Fascists. The story had been obtained with the help of
one of the women participants in the session, later known as Woman
E, who secretly filmed the proceedings using a camera supplied
by the News of the World and who was paid £12,000
by the paper.
41. The video was published on the News of the
World website and was viewed hundreds of thousands of times.
It was removed on 31 March 2008 pending an application by Mr Mosley
for an injunction against its continued dissemination, which was
heard on 4 April 2008. The video was returned to the website after
Mr Justice Eady ruled that it had already been so widely viewed
that further viewings could make 'very little practical difference'.
42. On 6 April 2008, the News of the World repeated
its allegations, under the headline 'My Nazi Orgy with F1 Boss'.
Devoting four pages to an account of the sex session by Woman
E, it dismissed assertions by Mr Mosley that there had been no
Nazi theme, quoting Woman E as stating that Mr Mosley had specifically
'ordered' the theme.
43. Mr Mosley sued the News of the World for
breach of confidence and/or unauthorised disclosure of personal
information amounting to a breach of his Article 8 right to privacy
under the European Convention on Human Rights. Following a full
trial in the High Court, the details of which were widely reported
in the press, Mr Justice Eady found that the newspaper had breached
Mr Mosley's right to privacy. He also noted that Woman E had committed
'an old fashioned breach of confidence', as well as a violation
of the Article 8 rights of all those involved.
Mr Mosley asked for exemplary or punitive damages from the News
of the World essentially as a deterrent, but the court found
that not only was there no power to award such damages, but also
that there would, in any event, be insufficient grounds to do
44. Mr Mosley's victory did not reverse his failure
to obtain an injunction restraining publication of the video taken
by Woman E, although it is not now on the News of the World
website. We consider the consistency of this ruling with other
cases concerning breach of confidence - including Barclays bank
and the Guardian in March 2009, and the recent action involving
Trafigura, Carter-Ruck solicitors and the Guardian again
- see paragraphs 107 to 113 - addressing the issues of prior restraint
45. The News of the World's defence in court
included the contention that publication of the story had been
in the public interest, and that this was a case where Article
10 of the ECHR should trump Article 8. Mr Justice Eady discussed
this in his judgment:
] the argument is raised that the
Claimant's right to privacy under Article 8 of the Convention
is outweighed by a greater public interest in disclosure, such
that the Defendant's right to freedom of expression under Article
10 should, in these particular circumstances, be allowed to prevail.
The public interest argument has somewhat shifted as matters have
developed. The primary case would appear to be that the public
has an interest in knowing of the newspaper's and/or Woman E's
allegation that the events of 28 March involved Nazi or concentration
camp role-play. A somewhat later variation on the theme, perhaps
primarily attributable to the Defendant's legal team, is that
what took place was at least partly illegal. It was said that
the Defendant was committing offences such as assault occasioning
actual bodily harm and brothel-keeping."
46. In oral evidence to us, Tom Crone, legal manager
for News Group Newspapers, which includes the News of the World,
argued that there had been a public interest in publishing because
Mr Mosley had a lead role in Formula One racing and was an international
spokesman for the UK automobile associations, the AA and the RAC.
47. In his judgment, Mr Justice Eady said that there
might have been a public interest in revealing the Nazi theme
of the session, if there had been such a theme:
"I have come to the conclusion (although
others might disagree) that if it really were the case, as the
newspaper alleged, that the Claimant had for entertainment and
sexual gratification been 'mocking the humiliating way the Jews
were treated', or 'parodying Holocaust horrors', there could be
a public interest in that being revealed at least to those in
the FIA to whom he is accountable. He has to deal with many people
of all races and religions, and has spoken out against racism
in the sport. If he really were behaving in the way I have just
described, that would, for many people, call seriously into question
his suitability for his FIA role. It would be information which
people arguably should have the opportunity to know and evaluate.
It is probably right to acknowledge that private fantasies should
not in themselves be subjected to legal scrutiny by the courts,
but when they are acted out that is not necessarily so."
48. In the absence of any evidence of a Nazi theme,
however, the judge concluded that there was no public interest
in revealing non-criminal sexual acts, regardless of their 'unconventional'
nature, and found, as a matter of law, that Mr Mosley had not
committed any illegal acts. He also criticised the manner in which
the News of the World's reached its decision to link the
sex session with Nazism, saying it was not based on rational analysis
of the evidence:
"Rather, it was a precipitate conclusion
that was reached 'in the round', as Mr Thurlbeck put it. The countervailing
factors, in particular the absence of any specifically Nazi indicia,
were not considered. When Mr Myler was taken at length through
dozens of photographs, some of which he had seen prior to publication,
he had to admit in the witness box that there were no Nazi indicia
and he could, of course, point to nothing which would justify
the suggestion of 'mocking' concentration camp victims. That conclusion
could, and should, have been reached before publication. I consider
that this willingness to believe in the Nazi element and the mocking
of Holocaust victims was not based on enquiries or analysis consistent
with 'responsible journalism'. Returning to the terminology used
by Lord Bingham in Jameel [
] the judgment was made
in a manner that could be characterised, at least, as 'casual'
49. In his judgment, Mr Justice Eady considered how
the News of the World had pursued the story following the
publication of its exclusive on 30 March 2008. Mr Thurlbeck, the
reporter responsible for both the initial article and the follow-up
on 6 April 2008, decided to seek an interview with other women
involved, besides Woman E. These women were referred to in court
as Women A, B, C and D.
50. On 2 April 2008, Mr Thurlbeck sent an email to
Women A and B offering money for an interview. On the following
day he emailed again in the following terms:
"I'm just about to send you a series of
pictures which will form the basis of our article this week. We
want to reveal the identities of the girls involved in the orgy
with Max as this is the only follow-up we have to our story. Our
preferred story however, would be you speaking to us directly
about your dealings with Max. And for that we would be extremely
grateful. In return for this, we would grant you full anonimity
[sic], pixilate your faces on all photographs and secure
a substantial sum of money for you. This puts you firmly in the
driving seat and allows you much greater control as well as preserving
your anonimities [sic] (your names won't be used or your
The judge concluded that this email constituted a
'clear threat' to Women A and B that, if they did not co-operate
by giving an interview, their identities would be revealed in
the News of the World on the following Sunday.
51. Mr Thurlbeck was cross-examined on this in court,
and explained his position thus:
"I'm not pretending this was an easy choice
for them [Women A and B], but it was the only choice. I was a
journalist with two stories, one of which I got from my own investigating,
and here it was, and the alternative was another story, an interview
with them anonymously for which they'd be paid. Those were the
choices. I'm not saying it was an easy choice and I'm not saying
it was a choice they particularly relished. It was a tough choice
but nevertheless they were the only options I could give them.
But I thought the second option of talking to me anonymously and
for money was a very fair option [
52. He did not accept that the exchanges could be
seen as blackmail:
"I'm offering to give them something. I'm
offering to pay them money for an anonymous interview. I'm offering
to pay them, not to take anything from them, so in that sense
I'm not blackmailing them at all. That thought never crossed my
mind. I'm offering them a choice."
53. The court concluded: 'It seems that Mr Thurlbeck
genuinely did not see the point. Yet it is elementary that blackmail
can be committed by the threat to do something which would not,
in itself, be unlawful.'
The editor of the News of the World, Colin Myler, when
cross-examined about the email exchange, accepted that Mr Thurlbeck's
communications 'could be interpreted as a threat' and, while saying
he was 'not so sure' they amounted to blackmail, could not produce
a justification for his reporter's methods.
Mr Justice Eady, having sought to clarify whether Mr Myler had
challenged Mr Thurlbeck over the emails, concluded that Mr Myler's
'non-answer' revealed that: "it would appear that Mr Myler
did not consider there was anything at all objectionable about
Mr Thurlbeck's approach to the two women, as he did not query
it at any stage. This discloses a remarkable state of affairs."
54. By the time Mr Myler appeared before us, Mr Mosley
had issued proceedings against the News of the World for
libel in relation to the articles of March and April 2008. Mr
Myler was therefore reluctant to comment on these matters. However,
a hypothetical question was put to him as to whether it would
constitute misbehaviour for a journalist to say to somebody involved
in a story that there were two ways of writing it and it was up
to them which way it was written. Mr Myler replied: "I think
it can be construed as misbehaviour but I think a lot of it depends
on exactly what is said. I think that is very important, because
two people can have different interpretations of what is meant."
55. In oral evidence to us Tom Crone denied that
Mr Thurlbeck's behaviour could constitute blackmail, or that Mr
Justice Eady considered that it may amount to such.
Having examined the judgment, we cannot agree.
56. A culture in which the threats made to Women
A and B could be seen as defensible is to be deplored. The fact
that News of the World executives still do not fully accept
the inappropriateness of what took place is extremely worrying.
The 'choice' given to the women by Neville Thurlbeck was in fact
no choice at all, given the threat of exposure if they did not
57. We found the News of the World editor's
attempts to justify the Max Mosley story on 'public interest'
grounds wholly unpersuasive, although we have no doubt the public
was interested in it.
Is it time to legislate on privacy?
58. The introduction of the Human Rights Act did
not end calls for Parliament to enact legislation on privacy.
In June 2003, our predecessor Committee considered the issue and
"On balance we firmly recommend that the
Government reconsider its position and bring forward legislative
proposals to clarify the protection that individuals can expect
from unwarranted intrusion by anyonenot the press aloneinto
their private lives. This is necessary fully to satisfy the obligations
upon the UK under the European Convention of Human Rights. There
should be full and wide consultation but in the end Parliament
should be allowed to undertake its proper legislative role."
59. In its response the Government disagreed, saying:
"The weighing of competing rights in individual
cases is the quintessential task of the courts, not of Government,
or Parliament. Parliament should only intervene if there are signs
that the courts are systematically striking the wrong balance;
we believe there are no such signs."
60. We subsequently examined the subject of press
intrusion in our 2007 Report Self-regulation of the press.
We found that the case had not been made for a law of privacy:
"To draft a law defining a right to privacy
which is both specific in its guidance but also flexible enough
to apply fairly to each case which would be tested against it
could be almost impossible. Many people would not want to seek
redress through the law, for reasons of cost and risk. In any
case, we are not persuaded that there is significant public support
for a privacy law."
61. The development of a generalised 'respect for
privacy' by the courts, as required under the Human Rights Act,
has inevitably been piecemeal and is likely to remain so for a
considerable time given the low number of privacy cases which
go to trial. Almost all cases are settled between parties without
trial. Only two have been heard in the High Court since January
2008, one of which was Mr Mosley's and the other was not against
a defendant in the media and was settled five days into the trial.
The low number of substantive privacy cases is not surprising,
given the deterrent effect that the prospect of a public trial
can have on claimants who are by definition concerned about privacy.
Mark Thomson, then of Carter-Ruck, told us: "I have a number
of claims where the client would have won, but given that they
[the press] published the article, which was deeply embarrassing,
they just did not want to go to court and face the full publicity
of an action."
62. The high costs of litigation combined with the
legal uncertainty, owing to the small amount of case law, undoubtedly
discourages the media from contesting privacy cases. Sean O'Neill
of The Times told us that in many cases a newspaper lawyer
would ask: "We think we would win on public interest, but
this privacy law is so uncertain, we don't know where we are going,
and is this the one on which we want to make our stand?"
While critical of the operation of the current law on privacy,
media witnesses were divided on the need for legislation on privacy.
Many thought that it would do more harm than good. Paul Dacre
said: "unequivocally I would not be in favour of a Privacy
Act. I believe it would have a very deleterious effect,
a chilling effect, on the press and the media in general."
63. Alan Rusbridger, whose newspaper has not been
sued to date for breach of privacy, favoured a wait-and-see approach:
"I am much more worried about libel than privacy, and I think
what is happening is that judges are being required to balance
Article 8 against Articles 10 [
] and they have not
had very good cases yet and I think probably we have to give
it a bit more time, because I do not think there has
been a good case where someone has tried to gag a newspaper
with a really good public interest defence."
64. However, Ian Hislop felt that the time had come
for Parliament to take action:
"if we are going to have a privacy
law or not have a privacy law or we are going to tinker with
the elements of privacy, Parliament is where this should be happening,
I do not think it should be just left to judges interpreting
the Human Rights Act."
65. Tom Crone, the News of the World's lawyer,
also expressed his unhappiness with the result of court judgments:
"we are very unhappy with the way privacy law has gone as
a result of judgments."
The Media Lawyers Association also supported legislation to ensure
"Determining what is in the public interest
or is a "higher priority" to the protection of someone's
reputation or privacy has become entirely dependent on the subjective
views of a High Court judge. We say that this is not a matter
that should be left up to the subjective determination of the
66. The Lord Chancellor suggested to us that law
in this area would become clearer in time:
"My experience of decisions in respect of
human rights over the years is that some of those which caused
the greatest initial excitement have ended in a situation where,
because of changed circumstances or appeals to the Court of Appeal
or the Law Lords, things have calmed down, because those senior
courts have produced a better balance. Since I am a respondent
to a large number of cases any day in the courts on human rights
bases and others, I can think of a number of cases in my area."
67. The Human Rights Act has only been in force
for nine years and inevitably the number of judgments involving
freedom of expression and privacy is limited. We agree with the
Lord Chancellor that law relating to privacy will become clearer
as more cases are decided by the courts. On balance we recognise
that this may take some considerable time. We note, however, that
the media industry itself is not united on the desirability, or
otherwise, of privacy legislation, or how it might be drafted.
Given the infinitely different circumstances which can arise in
different cases, and the obligations of the Human Rights Act,
judges would inevitably still exercise wide discretion. We conclude,
therefore, that for now matters relating to privacy should continue
to be determined according to common law, and the flexibility
that permits, rather than set down in statute.
MR JUSTICE EADY AND PRIVACY LAW
68. In November 2008, Paul Dacre made a speech to
the Society of Editors in which he accused one judge, Mr Justice
Eady, of 'introducing a privacy law by the back door'.
Mr Dacre subsequently said in oral evidence to us:
"In my speech I described his judgments
as 'arrogant' and 'amoral'. I am aware those are strong words
- they are not personal, I am talking about his judgments - but
I used those words because I felt passionately that he was adjudicating
in matters that Parliament should be deciding, and the fact he
was not taking on board Parliament, which represents the public,
has huge implications for British society."
69. Ian Hislop also expressed concern that one or
two judges might be developing privacy law. He admitted that there
had been cases when Mr Justice Eady found in Private Eye's
favour, but added: "on balance, it would be better if
it was not just him and one other judge making all the law".
Roy Greenslade however pointed out that judges are compelled to
make decisions on a case by case basis under consistent rules:
"It would be said by anyone defending the idea of a statutory
control that judges themselves would take everything on a case
by case interest. Indeed, that is what Mr Justice Eady - much
maligned - does on every occasion; he treats everything on a case
by case basis and so that would seem to fall in line."
70. Jeremy Clarke-Williams of Russell Jones and Walker
strongly defended the judge to us:
] if one reads something like the
Mosley judgment, I do not think that Mr Justice Eady could
have done a more conscientious job in seeking to balance freedom
of expression against the rights to respect for privacy and come
up with the decision which he did. I think it [section 12 of the
Human Rights Act] is being fairly applied. I think to suggest
otherwise is to come back to the unfair suggestion that the judges
who are determining these cases are in some way biased against
the media or biased in favour of an individual's right to respect
for privacy and I do not think that is a fair allegation to make."
71. We discussed these matters both with the Lord
Chancellor, who has a constitutional duty to defend the independence
of the judiciary, and with the then Master of the Rolls, Sir Anthony
Clarke. The Lord Chancellor told us that he did not feel it would
have been appropriate for him to intervene to defend Mr Justice
Eady because the criticism was insignificant:
"My duty, indeed I swear an oath - three
oaths altogether - to this effect: to uphold the integrity and
independence of the judiciary. If I had judged that that was being
significantly challenged in this case, I might have said something
but I did not judge it necessary [
72. Sir Anthony Clarke told us that the allegation
that Mr Justice Eady was developing a privacy law concerned him
because it was simply wrong and showed poor knowledge of court
"it is quite important for us to make sure
that our judgments are accurately reported, and all the business
about whether Mr Justice Eady created a privacy law all by himself
would not perhaps have had the publicity it had if people had
actually read a lot of these judgments, because it is simply not
73. In Parliament the Joint Committee on Human Rights
has already rejected Mr Dacre's allegations outright. In its Annual
Report 2007-2008 the Committee commented:
"Mr Dacre was wrong on a number of counts.
The Human Rights Act - which was, of course, passed by Parliament
- incorporated Articles 8 (right to a private life) and 10 (right
to freedom of expression) of the European Convention on Human
Rights into UK law. Parliament required the judiciary to balance
these sometimes conflicting rights in making decisions in libel
and privacy cases. Far from creating a privacy law to suit his
own 'moral sense', Lord [sic] Justice Eady was implementing legislation
passed by Parliament in deciding cases such as the recent action
by Max Mosley against the News of the World. Indeed English
courts have long protected confidential information, good reputation
and aspects of personal privacy at common law and in equity, quite
apart from Article 8 of the European Convention and the Human
74. Mr Justice Eady has not responded directly in
public to the attacks on him, but in a speech to the Intellectual
Property Lawyers Association in February 2009 he posited the argument
that the application of Article 8 was now so clear that it was
inevitable that the media would take out their 'frustration' on
first-instance judges rather than pursue a hopeless appeal. He
concluded: "I think it simply has to be recognized as an
inevitable consequence of adopting the balancing approach and
the "intense focus" on the particular facts of the case."
75. The record, in any case, does not sustain the
view that Mr Justice Eady has a dominant role in determining privacy
law. The leading cases on privacy, Campbell and Douglas,
both reached their conclusions in the House of Lords, as would
be expected in judgments of such significance. In the cases involving
privacy issues where the decision made by the High Court has been
appealed to the Court of Appeal, Mr Justice Eady has either not
been involved, or his decisions have been almost entirely upheld.
As discussed at paragraph 37 above, statistics on many types of
injunction are currently not collected. It is noteworthy, however,
that the limited information we do have on injunctions shows that,
of a total of six contested applications for privacy injunctions,
Mr Justice Eady heard three, refusing two and granting one, while
the other three applications, heard by different judges, were
76. We have received no evidence in this inquiry
that the judgments of Mr Justice Eady in the area of privacy have
departed from following the principles set out by the House of
Lords and the European Court of Human Rights. While witnesses
have criticised some of the judge's individual decisions, they
have praised others. If he, or indeed any other High Court judge,
departed from these principles, we would expect the matter to
be successfully appealed to a higher court. The focus on this
one judge regarding the development of privacy law, however, is
misplaced and risks distracting from the ongoing national debate
on the relationship between freedom of speech and the individual's
right to privacy.
77. Mr Mosley used his appearance before us to make
a case for legislation requiring editors and journalists to give
people about whom they write, not just the opportunity to comment,
but also notice of their intention to publish, so that such people
would have time, if appropriate, to seek injunctions preventing
publication. He has also issued proceedings against the UK Government
in the European Court of Human Rights seeking a ruling that the
Government's failure to enact such a legal requirement constitutes
a breach of his Article 8 rights.
78. In his evidence to us, Mr Mosley spoke of the
damage done to his reputation by a revelation which was ultimately
found to be an unlawful breach of his privacy:
"I had been doing this [S & M] for 45
years and there had never been a hint, nobody knew [
matter how long I live, no matter what part of the world I go
to, people will know about it. It is not that I am ashamed of
it like I am not ashamed of my bodily functions but I do not want
them on the front page of the newspaper."
79. He also described the 'appalling' impact on his
"My wife did not do anything, my sons did
not do anything, but they are the ones that feel more embarrassed
than anyone [...]. If there was a huge genuine public interest
in subjecting a family or individuals to that sort of thing, of
course one should do it, but it has to be a very big public interest
because the suffering you impose not just on the victim but on
his family is really, really serious."
80. Mr Mosley described as unjust a position where
newspapers can cause irreparable damage of this kind, and derive
commercial benefit from doing so, when they know there is a risk
that, much later, the courts will find they have acted unlawfully.
He suggested: 'they [the newspapers] should be obliged, in cases
where they know that the person is going to object to that publication
and there is a substantial chance that he will go to court and
could get an injunction, that they should notify him.'
81. Mr Mosley argued that such a requirement would
not impinge on the right to freedom of expression, and he felt
that a High Court judge was a more suitable person than the editor
of a newspaper to make a decision as to whether a story was in
the public interest:
"It is, I would suggest, inconceivable that
a judge, where there is serious investigative journalism - unless
there are other factors which one cannot speculate on - would
give an injunction because that is exactly the basis of a free
press, that you can have investigative journalism and it is in
the public interest [
]. It is the areas where neither The
Observer nor The Independent
nor Reuters would venture
that the red tops and the tabloids go. That is where you get the
terrible abuse of the rights of an editor [...]. They actually
abuse freedom of the press which is a very valuable thing and
they damage the whole of the press by their abuse."
82. In his own case, Mr Mosley stated that he would
certainly have sought an injunction if he had had advance notification
of the News of the World's intention to publish. Mr Myler
told us that he and his colleagues at the newspaper were conscious
of this: "we knew that probably Mr Mosley would get an injunction,
and I felt very strongly that this was a story that actually should
not be stopped because of an injunction."
83. Rod Christie-Miller, of Schillings solicitors,
agreed in evidence to us that pre-notification was a problem area.
He suggested that editors were able to be extremely calculating
in considering whether to pre-notify the subject of a story, and
that this led to an abuse of power:
"There have been a number of examples recently
where the media knew or suspected that they were going to be publishing
something which a court would injunct because it was invasive
of somebody's privacy and they decided, 'Well, if we run this
and if we tell the target they will probably get an injunction
and we will not be allowed to run it. Let's run it anyway.'"
84. Paul Dacre, editor of the Daily Mail,
dismissed such an approach in evidence to us as "kamikaze
But evidence of such practices is to be found in diaries published
by Piers Morgan, the former editor of the Daily Mirror,
which state that he would deliberately publish stories without
notifying the subject because he knew that otherwise the person
involved would get an injunction.
85. Equally, we heard evidence of editors or journalists
who have taken the decision to give notice of an intention to
publish, usually with a view to soliciting comments and reaction,
only for an injunction to be immediately served or the threat
of one to be raised.
Ian Hislop described his frustration at making inquiries of the
subject of a story only to immediately receive a lawyer's letter
Alan Rusbridger spoke of fighting a costly legal battle over an
injunction while the delay in publication played into the hands
of the claimant:
"The injunction prevented us from publishing
information which we believed was important to make known. We
would have to spend a great deal of time and money to overturn
what seems like a casual piece of censorship by the courts."
86. Nick Davies explained to us the dilemma faced
"the journalist's instinct is to go to the
other side to check because you do not want to get caught out
with some killer fact then your story is wrong. However, if you
are doing a story which could be deemed to be confidential or
- which is slightly different but similar - private, you are very,
very reluctant to go to the other side because they can injunct
you and these injunctions can sit there for months, particularly
on breach of confidence."
87. If compulsory pre-notification were introduced,
others besides newspapers would be affected. Global Witness, a
non-governmental organisation investigating profiteering and human
rights abuses resulting from exploitation of natural resources,
told us that they feared a compulsory pre-notification requirement
could put their staff and sources in danger.
88. Mark Stephens, a lawyer who represents human
rights organisations, suggested to us that, to protect vital investigative
work, there would have to be a public interest exception.
But such an exception, allowing editors not to give notice where
there was a pressing public interest, would be difficult to define
and to operate, as several witnesses told us. Professor Roy Greenslade
put it this way:
"No-one has ever drafted a perfect definition
of public interest. Nick [Davies] has rightly pointed to its fuzziness.
Even in the editor's code of practice it is a really wide definition
that they have and it is impossible I think to encode the public
interest, which is, by the way, a moving feast."
89. We have also heard evidence that pre-notification
does not necessarily prevent inaccurate reporting. Gerry McCann
told us that pre-notification had not prevented inaccurate stories
being published about him and his wife in the UK press: "In
terms of advance notice, I would often hear Clarence [Mitchell,
the couple's media adviser] on the phone to journalists expressly
telling them that the information they had was rubbish. It would
not stop it being published."
90. Newspaper editors insisted to us that in the
great majority of cases journalists contact the people they are
writing about. Paul Dacre said that in '99 times out of 100'
the Daily Mail would contact the subject of a story, and
Peter Hill, editor of the Daily Express, said:
"In pretty much every case we do give people
the opportunity to respond to something which is about to be written
about them or we will go to people and say we have this [
They might have a complete answer to it. There is the odd story
[...] where I think it would not be possible to do that because
it would have ended up as an injunction and somehow the story
would be lost."
91. Clearly pre-notification, in the form of giving
opportunity to comment, is the norm across the industry. Nevertheless
we were surprised to learn that the PCC does not provide any guidance
on pre-notification. Giving subjects of articles the opportunity
to comment is often crucial to fair and balanced reporting, and
there needs to be explicit provision in the PCC Code itself.
92. We recommend that the PCC should amend the
Code to include a requirement that journalists should normally
notify the subject of their articles prior to publication, subject
to a "public interest" test, and should provide guidance
for journalists and editors on pre-notifying in the Editors' Codebook.
93. We have concluded that a legal or unconditional
requirement to pre-notify would be ineffective, due to what we
accept is the need for a "public interest" exception.
Instead we believe that it would be appropriate to encourage editors
and journalists to notify in advance the subject of a critical
story or report by permitting courts to take account of any failure
to notify when assessing damages in any subsequent proceedings
for breach of Article 8. We therefore recommend that the Ministry
of Justice should amend the Civil Procedure Rules to make failure
to pre-notify an aggravating factor in assessing damages in a
breach of Article 8. We further suggest that amendment to the
Rules should stipulate that no entitlement to aggravated damages
arises in cases where there is a public interest in the release
of that private information.
94. On 12 October 2009, one of the members of our
Committee, Paul Farrelly MP, tabled a number of Parliamentary
questions, one of which concerned an injunction obtained by Trafigura,
a company trading in oil, base metals and other items, preventing
the publication of a report on the alleged dumping of toxic waste
in the Ivory Coast. Trafigura's solicitors, Carter-Ruck, on learning
of Mr Farrelly's question, informed the Guardian that it
would be a breach of the injunction if the newspaper reported
the question, but agreed to seek instructions from Trafigura on
a variation of the order. The Guardian promptly published,
initially online and then on the front page of its 13 October
2009 issue, the fact that it was unable to report a tabled Parliamentary
question. The internal report Trafigura wanted to suppress was
already widely available on the internet.
95. The injunction which both Carter-Ruck and
Guardian lawyers believed prevented the reporting of Parliamentary
proceedings was a so-called 'super-injunction'. This is a court
order which requires that, when an injunction is in place, its
very existence may not be disclosed or published. The order in
the Trafigura case was granted on 11 September, 2009 by a vacation
duty judge, Mr Justice Maddison, at a private hearing of which
the Guardian had just a few hours' notice. It also applied
to other 'persons unknown' and anyone who became aware of its
existence. The injunction was drafted by Carter-Ruck and in this
case a third level of secrecy was granted in that Trafigura and
subsidiary's identities as claimants were replaced by the random
initials 'RJW' and 'SJW'. The case never went to a full hearing,
because the tabling of Parliamentary questions is protected by
parliamentary privilege and due to the publicity which followed,
not least on the internet, Trafigura and Carter-Ruck withdrew
the injunction. The Guardian estimated, however, that it
would have cost at least £300,000 to go to a hearing, at
a time it was making redundancies.
96. It appears that the injunction and secondary
court order were not specifically drafted with the aim of preventing
the reporting of Parliamentary discussion, and as a result confusion
has arisen over whether the injuncted matter could, indeed, be
reported when it was referred to in Parliament.
97. The Lord Chief Justice, Lord Judge, took the
unusual step of issuing a press release, stating:
"I am speaking entirely personally but I
should need some very powerful persuasion indeed - and that, I
suppose, is close to saying I simply cannot envisage - that it
would be constitutionally possible, or proper, for a court to
make an order which might prevent or hinder or limit discussion
of any topic in Parliament. Or that any judge would intentionally
formulate an injunction which would purport to have that effect."
We warmly welcome his comments.
98. Section 3 of the Parliamentary Papers Act 1840
provides that 'any extract from or abstract of' a 'report, paper,
votes, or proceedings' of Parliament is immune from civil and
criminal liability if published in good faith and 'without malice'.
The right of the press to report matters in parliament is also
codified in statute in Schedule 1 of the Defamation Act 1996.
This confers 'qualified privilege', which is again subject to
the tests of the report being 'fair and accurate, and published
without malice' and generally in the public interest. This clearly
covers written questions such as that concerning Trafigura. In
a debate on libel in Westminster Hall on 21 October 2009, Bridget
Prentice, the Parliamentary Under-Secretary of State for Justice,
confirmed that section 3 of the 1840 Act remained in force, and
therefore that the Guardian was free to report the text
of the question.
99. However, the Minister's assurances were subsequently
challenged in a submission to us from Carter-Ruck.
While the firm accepted that Article 9 of the Bill of Rights provides
that no court order could restrain debate in Parliament, it remained
adamant that reporting of the question by the Guardian,
which is subject to common law and statute rather than the Bill
of Rights, was restrained under the injunction. Carter-Ruck told
] at the time the interim Orders
were made, none of the parties nor the Court had in contemplation
the possibility of the matter being raised in the House of Commons.
If they had, then the order may well have been formulated (as
was done, it appears on the initiative of the Court of Appeal,
in the Spycatcher litigation) to allow for such reporting. However,
on the wording of the Order as it then stood, it was clear to
us that, absent a variation of its terms, it would amount to a
breach and therefore a contempt for the Guardian to publish,
as it proposed, information about Mr Farrelly's parliamentary
question, referring to the existence of the injunction.
With regard to the Parliamentary Papers Act 1840,
the Guardian did not contend that the information which
it proposed to publish would be confined to material within the
scope of Section 3 of the Act; even had it been, it would still
beg the question whether a newspaper which is subject to an injunction
can claim to be acting 'bona fide' within the definition
of the Act if, rather than seek a variation, it chooses to publish
material in breach of the injunction. Likewise, with regard to
the Contempt of Court Act 1981, where a court has made an interim
Order, restraining a newspaper from publishing material pending
a full hearing, the question arises as to whether it may be considered
'conduct intended to impede or prejudice the administration of
justice' for that newspaper, absent a variation of the Order,
to publish such material."
100. The Trafigura affair is not the first occasion
on which the clarity of the existing law has been called into
question. In 1999, the Joint Committee on Parliamentary Privilege
recommended: "that the statutory protection [afforded to
the media by the Parliamentary Papers Act 1840] would be more
transparent and accessible if it were included in a modern statute,
whose language and style would be easier to understand than the
1840 Act. We recommend that the 1840 Act, as amended, should be
replaced with a modern statute."
101. The free and fair reporting of proceedings
in Parliament is a cornerstone of a democracy. In the UK, publication
of fair extracts of reports of proceedings in Parliament made
without malice are protected by the Parliamentary Papers Act 1840.
They cannot be fettered by a court order. However, the confusion
over this issue has caused us the very gravest concern that this
freedom is being undermined. We therefore repeat previous recommendations
from the Committee on Parliamentary Privilege that the Ministry
of Justice replace the Parliamentary Papers Act 1840 with a clear
and comprehensible modern statute.
102. These events involving Trafigura occurred after
the conclusion of our oral evidence sessions. In a debate in Westminster
Hall on 21 October 2009, Bridget Prentice MP, the Parliamentary
Under-Secretary of State for Justice, said that the Ministry of
Justice was examining the use of super-injunctions outside the
areas of fraud and child protection with the judiciary and lawyers
from major newspapers.
Notwithstanding the controversy already, Carter-Ruck had also
sought to persuade the Speaker of the House of Commons that this
debate should not proceed as the case was sub judice under
the House's own rules. The Speaker, however, exercised his absolute
discretion and allowed the debate. We welcome the Speaker's
determination to defend freedom of speech in Parliament, as well
as the comments by the Lord Chief Justice on the Trafigura affair,
and strongly urge that a way is found to limit the use of super-injunctions
as far as is possible and to make clear that they are not intended
to fetter the fundamental rights of the press to report the proceedings
of Parliament. Given the importance of these issues, we hope that
a clear statement regarding the way forward is made before the
end of this Parliament.
Breach of confidence
103. The Human Rights Act has not superseded the
law of confidence. The ECHR is designed to protect individuals,
so corporate entities, public authorities and other organisations
still rely on the law of confidence to protect private information.
104. Breach of confidence was developed by the courts
following the publication of private etchings and pictures, made
by Queen Victoria and Prince Albert of their family and friends,
and disseminated within a small group.
The original components of an action, in which the burden of proof
is on the claimant, were that the information in question was
secret or confidential, that it was acquired in circumstances
giving rise to a duty of confidence; and that it had been or would
be used to the detriment of the confider.
Over time, however, the definition of confidential information
105. The law on breach of confidence was considered
by the House of Lords in 1990, in the case of the publication
by Sunday newspapers of excerpts from 'Spycatcher', the memoirs
of former MI5 employee Peter Wright. The Government of the day
sought an injunction restraining publication of the book. In his
judgment Lord Goff stated, as a general principle, that:
"a duty of confidence arises when confidential
information comes to the knowledge of a person (the confidant)
in circumstances where he has notice, or is held to have agreed,
that the information is confidential, with the effect that it
would be just in all the circumstances that he should be precluded
from disclosing the information to others."
106. The law requires the publisher to consider not
only where the information has come from but also whether the
information itself is in fact private. For instance, the owner
of a personal diary dropped in the street and picked up by a passer-by
has a reasonable expectation of privacy. However, in the case
of 'Spycatcher' the memoirs had been published abroad and were
also widely available in the United Kingdom, and Lord Goff noted
that a claimant could no longer sue for breach of confidence when
the information was so widely disseminated that it could no longer
be said to be confidential. The application for an injunction
107. In March 2009, Barclays Bank obtained an injunction
requiring the removal from the Guardian's website of seven
leaked memoranda showing that Barclays had set up companies to
take advantage of tax loopholes. The interim injunction was made
over the phone by Mr Justice Ousely at 2.30am on the morning of
Tuesday, 17th March, 2009 and was upheld after an immediate, two-day
hearing by Mr Justice Blake in the High Court. The Guardian
was also barred from publicising their whereabouts on the internet,
and the absurdity was heightened when the peer Lord Oakeshott
used Parliamentary privilege to reveal the where the sites could
be found. In that
case, unlike Trafigura, however, Barclays' lawyers did not argue
that the media was prevented from reporting the proceedings of
108. A publication that is sued for breach of confidence
has a defence if it can show that publication of private or confidential
information was in the public interest.
In such cases the judge must strike a balance between the claimant's
right to confidence and the public interest the defendant claims
will be served by publication.
109. When he appeared before us, Alan Rusbridger,
editor of the Guardian, argued that publication of the
memoranda was a clear matter of public interest:
"Barclays documents that we were sent we
put on the web and were hit [with an injunction] [...] at two
o'clock in the morning by a judge who told us to take them down.
Now, that [publication] was [in our view] clearly in the public
interest [...] because, if you look at the small print of the
Budget, the Budget has closed down most of the loopholes that
Barclays were using, so it was clearly in the public interest
that those documents should have been published."
110. In the Barclays case, the judge decided that
the bank's right to confidentiality outweighed the Guardian's
claim of public interest. Alan Rusbridger told us that he
did not feel the need to appeal the case as, despite the fact
that the court ruled against the Guardian, the information
was in fact freely available on the internet:
"The documents are out; they were put on
to a website called Wikileaks, and I am allowed to tell you that
because it was mentioned in Parliament, but I think it is a very
interesting case where the law has completely failed to catch
up with the internet because there was this arcane discussion
in the High Court about whether this was private or not and whether
they could contain it in a room, whereas everybody was twittering
and linking to it because it was already out there, but the court
pretended it was not."
111. It is noteworthy, nonetheless, that the Barclays
and Trafigura decisions over breach of confidence contrast with
those of Mr Justice Eady's regarding privacy and removal of the
Mosley video, although in each the information was widely available
on the internet. In the Barclays and Trafigura cases, the 'public
interest' arguments also appear to us stronger. It is understandable,
therefore, that the media and the public are confused about the
approach of different courts with respect to issuing injunctions.
112. The evidence we have heard shows the impact
of the internet on the leaking of information has fundamentally
altered the dissemination of information, and consequently breaches
113. In particular, the Trafigura and Barclays
cases raise issues over the use of injunctions for breach of confidence
by companies which do not have Article 8 rights to defend, the
ease with which they appear to be granted and the consistency
of practice in the court system.
6 Right of Privacy Bill [Bill 35 (1960-61)] Back
Right of Privacy Bill [Bill 25 (1969-70)] Back
Report of the Committee into Privacy and Related Matters, Cm 1102 Back
Review of Press Regulation, Cm 2135 Back
Cm 2918 Back
Human Rights Act 1998 Back
Décision 94-352 du Conseil Constitutionnel, 18 January
Article 9 The Civil Code Back
See generally J Bell, S Boyron and S Whittaker, Principles of
French Law (OUP, 1998), pp 354-391 Back
German Federal Constitutional Court, 1999 Back
"Berlusconi fury over naked photos", BBC news online,
5 June 2009 news.bbc.co.uk Back
Human Rights Act 1998, Section 6 (1) Back
Ibid., Section 6 (2) Back
 UKHL 22 Back
 EWCA Civ. 1776 Back
 UKHL 44 Back
Lord Bingham of Cornhill in Jameel v Wall Street Journal
 UKHL 44 at 17 Back
Ev 203 Back
Cream Holdings v Bannerjee and Others  UKHL 44 Back
HC Deb 16 February 1998, col 775 Back
HC Deb 2 July 1998, col 541 Back
Q 28 Back
Q 105 Back
Ev 399 Back
Q 976 Back
Q 970 Back
Q 866 Back
Napier v Pressdram Ltd.  EWCA Civ 443 Law Gazette,
"Michael Napier steps down from the Legal Services Board",
28 May 2009 Back
Q 866 Back
Q 595 Back
Q 736 Back
Ev 198 Back
Ev 223 Back
HC Deb, 15 October 2009, col 1010W Back
"F1 Boss has sick Nazi orgy with 5 hookers", News
of the World, 30 March 2008 Back
Para 5 Mosley v News Group Newspapers  EWHC 1777
(QB) (Mosley (2)). Back
Para 36 Mosley v News Group Newspapers  EWHC 687
(QB) (Mosley (1)). Back
Para 40 Mosley (2) Back
Para 108, Ibid. Back
Para 210 Mosley (2) Back
Paras 24-25, Ibid. Back
Q 782 Back
Para 122 Mosley (2) Back
Para 170, Ibid. Back
Para 81, Ibid. Back
Para 82 Mosley (2) Back
Para 87, Ibid. Back
Para 87, Ibid. Back
Para 87, Ibid. Back
Para 85, Ibid. Back
Para 86, Ibid. Back
Q 768 Back
Q 788; para 87 Mosley (2) Back
Culture, Media and Sport Committee, Fifth Report of Session 2002-03,
Privacy and media intrusion, HC 458-I, para 111 Back
Culture, Media and Sport Select Committee, Privacy and media
intrusion, Replies to the Committee's Fifth Report of Session
2002-03, First Special Report of Session 2003-04, HC 213, para
Culture, Media and Sport Committee, Seventh Report of Session
2006-07, Self-regulation of the press, HC 375 Back
Culture, Media and Sport Committee, Fifth Report of Session 2002-03,
Privacy and media intrusion, HC 458-I, para 53 Back
A & Another v Priory Healthcare, heard in February
Q 108 Back
Q 317 Back
Q 519 Back
Q 875 Back
Q 848 Back
Ev 12 Back
Q 977 Back
Paul Dacre's speech to the Society of Editors, Press Gazette,
9 November 2008 Back
Q 510 Back
Q 904 Back
Q 488 Back
Q 105 Back
Q 1013 Back
Q 964 Back
Joint Committee on Human Rights, Second Report of Session 2008-2009,
Work of the Committee 2007-2008, HL 10/HC 92, para 14 Back
Ev 479 Back
Ash v McKennitt EWCA Civ 1714; Browne v Associated
Newspapers  EWCA Civ 295; Murray v Big Pictures (UK)
Ltd.  EWCA Civ 446 Back
Ev 223 Back
Q 127 Back
Q 128 Back
Q 130 Back
Q 133 Back
Q 812 Back
Q 83 Back
Q 557 Back
Piers Morgan, The Inside: private diaries of a scandalous decade
(London, 2005) Back
Ev 289-290 Back
Qq 851-856 Back
Ev 291 Back
Q 448 Back
Ev 241-242 Back
Q 1060 Back
Q 458 Back
Q 196 Back
Q 594 Back
Qq 733-735 Back
Judiciary of England and Wales, Statement of the Lord Chief
Justice, 20 October 2009, www.judiciary.gov.uk Back
Ev 461 Back
Ev 462 Back
Joint Committee on Parliamentary Privilege, First Report of Session
1998-99, HL 43/HC 214 , para 374 Back
HC Deb, 21 October 2009, col 294WH Back
Prince Albert v Strange  EWHC Ch J20 Back
Prince Albert v Strange  EWHC Ch J20, Coco v
A N Clark (Engineers) Ltd (1969) Back
Attorney-General v Guardian Newspapers Ltd. (No. 2) 
1 AC 109 Back
HL Deb, 26 March 2009, col 773 Back
Gartside v. Outram (1857) 26 L.J. Ch. 113; Initial
Services Ltd, v. Puttrill  1 Q.B. 396, Beloff v.
Pressdram Ltd.  1 A.E.R. 241 Back
Attorney-General v Guardian Newspapers Ltd. (No. 2) 
1 AC 109 Back
Q 866 Back
Q 884 Back