As we await the judgment of the Supreme Court of England and Wales to determine whether or not to lift a temporary injunction naming a celebrity who apparently engaged, or sought to engage in a ménage-a-trois, it is worth reflecting on the tangled knot of rules and laws relating to the disclosure of confidential and private information in England.
This case brought to mind similar circumstances nearly fifty years ago when the Duke and Duchess of Argyll fought tooth and nail to disclose and resist details of their private lives being made public. In 1967 there was a great scandal brewing when the Duke of Argyll sought to publish salacious details of the apparently insatiable sexual appetite of his ex-wife, the Duchess of Argyll in a Sunday newspaper. There were in excess of 80 suspects, ranging from members of the Royal family, movie stars, politicians and leading businessman.
The Chancery judge hearing the application, Mr Justice Ungoed-Thomas had no hesitation in granting the injunction primarily on the grounds that between spouses there was a common law duty of confidentiality, a sort of what goes on in the castle stays in the castle, attitude.
A slightly different issue arose in 1996 when the celebrated model Naomi Campbell sought to claim damages as a result of a photograph being published which disclosed her visit to a Narcotics Anonymous meeting. In effect the Naomi Campbell case created a new common law ground of privacy which existed both outside a contractual and a confidential relationship.
Putting aside a passing reference to privately commissioned photographs under the Copyright, Designs and Patents Act, there was no statute-based law of privacy and confidentiality in the UK until the Data Protection Act of 1988, followed a decade later by the Human Rights Act of 1998.
The legal basis of privacy and confidentiality
The legal grounds for seeking to prevent publication on grounds of privacy or confidentiality are now expressed either under statute (primarily under the Human Rights Act); under common law (following a series of judgments usually traced back to the Prince Albert v. Strange case in 1849) or under contract.
Courts have always been more predictable and universally consistent in upholding clear, written agreements between parties rather than relying on common law principles of confidentiality which are not only difficult to apply but tend to vary widely from
one jurisdiction to another.
One must also consider the time and costs involved in two opposing sets of highly trained and very expensive lawyers debating the ‘balance’ between the opposing right of freedom of expression on the one hand and the right to privacy on the other in order to gain a judgment that is not respected outside our small jurisdiction. Against that background, the best way of addressing issues of privacy and confidentiality is through a clear written agreement, if the circumstances permit.
Adrian C. Laing is co-author with Deborah Fosbrook of The A-Z of Contract Clauses, Sixth Edition, The Media and Business Contracts Handbook, Fifth Edition, and Contract and Copyright Drafting Skills.