The outcome of the imaginatively-named case of CC v AB (2006) may strike some as surprising, but not those who have been following the process by which the courts are interpreting and applying the law of privacy. Ian Adamson explains.

In this case, AB had discovered that his wife had had an adulterous relationship with CC. Since CC was presumably a figure in the public eye, AB decided to sell the story to the newspapers. He informed CC of his intentions in correspondence containing language that was both graphic and offensive.

CC applied to the court for an injunction to stop both publication and what he alleged was AB’s harassment, contrary to the Protection from Harassment Act 1997. CC told the court that he wanted to protect his wife and children from damage that would result from publication, and that he wished to rebuild his marriage, which publication would make more difficult.

The Judge declared that there was no general rule that an adulterer could never obtain an injunction in such circumstances. The case raised competing rights under the European Convention on Human Rights, particularly between an individual’s right to protect their private life and the right to free expression. He stated that ‘freedom of speech should only be constrained if it is necessary to do so to protect the rights of other persons concerned; what is more, any such restraint should be limited to what is proportionate’.

In resolving the conflict, the Judge took into account the fact that what AB intended to disclose were the details of an intimate personal relationship where the parties were entitled to have a reasonable expectation of privacy, and also the interests of CC’s wife and children. Although the facts might have been interesting to the public, they were not of public interest and, therefore, on this occasion the interests of privacy should outweigh those of free speech.

CC was also successful in relation to his application for an injunction on the grounds of harassment. Harassment is defined to include ‘alarming the person or causing the person distress’ and the evidence clearly indicated that AB had sent a series of communications to CC in which he delighted in explaining what would happen to CC when the facts were made public, part of the revenge which AB sought to inflict upon CC.

It may now be evident that the case was not about who was the good guy and who was the bad guy. It concerned legal rights which we all possess to protect our privacy, regardless of the moral circumstances in which our need to maintain that privacy arises. The case is not an isolated example of a court preventing press and other intrusions into private life. Recent case law provides a number of instances. Prince Charles prevented a number of newspapers from publishing details of his views on public events recorded in his private journals; the court has assisted a famous folk singer to restrain her erstwhile friend and business partner from revealing details of the folk singer’s life, feelings and domestic arrangements; and it has enabled a high profile, and usually publicity-seeking, model to prevent national newspapers and persons unknown from disclosing intimate details of her relationship with her husband. Most recently, the court has awarded record compensation to Max Mosley against a group of newspapers which, contrary to his right to privacy, published details of his unconventional sexual activities.

The message is clear; in an intrusive age, privacy is profoundly important and – if asked to rule – the courts will not permit it to be undermined, even on the grounds of freedom of speech, if the ultimate result is simply to pander to the insatiable curiosity and salacious appetites of the public for tittle-tattle.