In April this year an urgent application was made on behalf of two individuals for an injunction to prohibit publication by the defendant, the publisher of the Daily Mail, of what they claimed to be private and confidential information about them.
This case concerned a two-year personal relationship between the claimants, which they had kept secret. The first claimant was married, though the couple were separated. The first claimant held a senior position in an educational institution. The second claimant was an adult who was associated with the institution. The relationship was known to a small group of people and was not in the public domain, but an anonymous letter had been circulated to certain media organisations giving some information about the relationship and pictures of the claimants together.
The defendant newspaper subsequently became aware of the nature of the relationship between the two claimants and informed the claimants of their intention to publish that information. The claimants issued an urgent application for a temporary injunction preventing the defendant from publishing the information, which they argued was confidential and private.
The claimants’ case was that there is no lawful basis for the disclosure of this information by the defendants to the public at large via the pages of the newspaper. The defendant’s case was that if there is any privacy and confidentiality attaching to the information it wishes to publish then it is of a low level, and that in any event there is a legitimate public interest in its disclosure which is such as to outweigh the rights of the claimants.
The principles to be applied on an application of this kind are well established:
- Section 12(3) of the Human Rights Act 1998 provides that an applicant for an injunction of this kind must satisfy the court that they are likely to succeed at trial in establishing that publication should not be allowed. In this context “likely” means more likely than not.
- In order to succeed in a claim for breach of confidence it must be shown that the information in question is confidential in character, that the defendant owes the claimants a duty of confidence in respect of it, and that the use or disclosure that is threatened would represent a breach of that duty.
- To make out a claim in misuse of private information a claimant must show that they enjoy a reasonable expectation of privacy in respect of the information in question; if that is established the court must engage in close scrutiny of the specific rights in play before it and determine whether, on the one hand, the privacy rights of the claimants should yield to the rights of the defendant and others to the free flow of information or, on the other hand, the claimants’ rights should prevail over those of others. The competing rights are of inherently equal value. The answer is determined by the yardsticks of necessity and proportionality.
- The question at this stage is therefore whether, on the evidence now before the court, the claimants have shown that it is more likely than not that the court will at trial reach the conclusions necessary for the establishment of these claims.
In this case there was evidence that the fact of the relationship was also known to some in the media, not limited to the defendant. That knowledge appeared to have come about because an anonymous letter had been circulated amongst certain media organisations giving some information about the relationship, although it did not name the second claimant. However, the court found no evidence that the relationship was in the public domain.
Mr Justice Warby adjudged that whether the fact of a relationship is private or confidential information will depend on the circumstances of each case. Very often it will not be confidential or private. The relationship between married people is a public fact and in no way confidential, for example. Other relationships involving less formal, public, or enduring commitments can also be public information and not private or confidential. In this case, Mr Justice Warby accepted the claimants’ submission that the fact of their relationship was at that time an item of information that was both confidential and private and the extent to which it is was known appeared to be very limited. Mr Justice Warby considered that it was likely that at trial the court would conclude that the defendant was under a duty of confidence in respect of the information.
In his judgement, Mr Justice Warby accepted that there is a genuine public interest in debating the ethics of personal relationships within an educational context, and how these should be approached and dealt with. However, whilst it was accepted that there is a legitimate interest in such a debate being informed by concrete examples or illustrations rather than merely theoretically, in this case it was not considered likely that at a trial the court would conclude that the facts of and surrounding the relationship between these two claimants are such that it is in the public interest to make those facts known for those purposes.
It is important to emphasise that the decision on an application such as this has to be made on the basis of the evidence before the court on the application. That evidence is often incomplete, and can leave some uncertainties about relevant facts. The court must do its best, without engaging in speculation, to arrive at an assessment of the most likely outcome if all the evidence was before it at a trial.