Copland v UK [2007] ECHR 253, 3 April 2007 concerns a university college employee (Copland) who worked as personal assistant to the college principal and alongside the deputy principal. For several months prior to November 1999, on the instruction of the deputy principal, Copland’s telephone usage was monitored and records kept of her use of the internet including emails. At that time, no policy was in place at the college in relation to use of the telephones, email or the internet by college employees. Moreover, the Telecommunications (Lawful Business Practice) Regulations 2000, which now govern such acts, did not come into force until after this time, on 24 October 2000.

The Government, directly responsible for the actions of the College under the European Convention of Human Rights (the “ECHR”), said that the information was automatically generated and only being used to ensure that there was no abuse by the staff of the college’s resources.

The Court nevertheless held that telephone calls from business premises are prima facie covered by the terms ‘private life’ and ‘correspondence’ for the purposes of Article 8 of ECHR (which provides for the protection of private life), and ruled that the same should apply to internet usage. Furthermore, the information gathered was an integral part of such correspondence whilst no warning had been given to the employee that this information was being stored. The Government maintained that the interference was permissible under Article 8(2) of the ECHR but the Court rejected such defence because it found that no measure of domestic legal protection was available at that time for such interferences by public authorities, as the Telecommunications Regulations were not in force in November 1999.

There are also signs that the protection of private life is approaching a consistent standard, under the doctrine of ‘breach of confidence’. In March 2007, the House of Lords rejected the application for permission to appeal against the ruling of the Court of Appeal in Ash v McKennitt [2006] EWCA Civ 1714.

The issue concerned a book that the appellant wrote about Ms McKennitt (a celebrated folk singer), providing details of her private life, including a full account of the bereavement that the folk singer had experienced after the death of her fiancé. The decision of the Court of Appeal considered first whether the information was provided via a confidential relationship and found that indeed it was. This was also apparent from the evidence that showed Ms Ash ‘was well aware that some material was imparted to her in the context of close friendship and [she was] nevertheless prepared to reveal it in order to attract readers’. Given the private character of such information, the information was in principle protected under Article 8 of the ECHR and the Court had to operate a balancing exercise to determine whether this outweighed Ms Ash’s right to freedom of expression under Article 10 of the ECHR. The Court of Appeal upheld the decision that it did not. Ms McKennitt not being a public figure in whom there was legitimate public interest to justify exposure of her private life. The decision by the House of Lords to refuse Ms Ash’s further appeal, and therefore to uphold the decision by the Court of Appeal, fits into the wider international scenario and the recent judgments of the European Court of Human Rights, and provides further guidance for the English courts when hearing future disputes concerning the ext ernal intrusions, especially by the media, into the private lives of individuals.

Commercial information, the press and privacy: Lord Browne of Madingley

The CEO of BP, sought to restrain the defendant from publishing, in the Mail on Sunday, any details of the relationship between the claimant and his former partner, Mr. Jeff Chevalier (JC) and any confidential or private information that JC had obtained in the course of that relationship on the grounds that they were matters in respect of which the claimant had a ‘reasonable expectation of privacy’ and/or because they were communicated to the press in breach of a duty of confidence arising from an intimate personal relationship. In January 2007, the High Court granted his petition by ordering a wide-ranging injunction. In the substantive hearing, Eady J. maintained the injunction in part but refused to restrain publication of information pertaining to the claimant’s alleged misuse of company’s resources, the claimant’s alleged breach of confidentiality by leaking confidential BP issues and documents to JC and lastly, the mere fact of the relationship between the two. This part of the decision was upheld by the Court of Appeal. Eady J. also included in his judgment details of a lie told by the claimant in the early part of the proceedings, about the circumstances in which he met JC. The Court criticised the judgment on this point, but declined to grant an injunction restraining the defendant from publishing such details.

The case highlights the ongoing tension between the right to privacy of the claimant under Article 8 and the right of freedom of expression of the defendant under Article 10 of the European Convention on Human Rights (ECHR). To gauge this tension the Court of Appeal first discussed the question as to whether the claimant had a reasonable expectation of privacy in the specific information which he wanted to protect. The claimant contended that his privacy expectations arose from his relationship with JC. The Court, after taking into account the cases that did and did not involve pre-existing relationships of confidence, held that the mere fact that the information was imparted in the course of a relationship of confidence did not satisfy the test of ‘expectation of privacy’ as set out in Campbell v MGN[2004] 2 AC 457. Next, the Court opined on Article 10. It reiterated the balancing test that the newspapers’ right to publish information must be balanced against any reasonable expectation of privacy as incorporated in Article 8.

Upon analysis of the facts, the Court upheld Eady J.’s decision that the claimant could have no reasonable expectation of privacy with regard to information pertaining to claimant’s alleged misuse of company’s resources and the leakage of confidential BP information. The Court opined that it was important to ask the question as to whether the law would protect as private, information that a senior executive had allegedly misused company resources for his partner’s benefit.

Also, the Court agreed with Eady J. in upholding that even if the claimant had established a reasonable expectation of privacy, the need to balance the competing interests enshrined in Article 8 and 10 respectively favoured the disclosure of such information, as BP shareholders’ interests prevailed over that of the claimant. Moreover, the latter could not have overcome the requirement in Article 12(3) of the Human Rights Act, 1998 (HRA) and shown that he was likely to establish at a trial that such publication should be disallowed.

In case of information regarding the mere fact of the relationship, the Court held that the defendant could disclose it as it provided the context to base all other information. Lastly, with regard to the issue of the lie, the Court of Appeal opined that Eady J had erred in refusing to exclude the details of the lie from his judgment as it was not in accordance with the principles set out in Cream Holdings v Bannerjee [2005] 1 AC 263, where it was held that a court should not publish such information as it would pre-empt any publication by the defendant and would or might pre-empt any remedy in damages which a claimant might have if the information were published by the defendant.

The English law is devoid of a tort of invasion of privacy. It could perhaps be said that the instant case, which follows a long line of cases involving similar issues, is another attempt by the courts to develop a sui generis protection of privacy, separate from the tort of breach of confidence, by importing values, enshrined in Articles 8 and 10 of the ECHR into extant laws like the HRA and mould them accordingly. Boehringer Ingelheim Ltd v Vetplus Ltd (unrep) Boehringer Ingelheim succeeded in obtaining an ex parte interim injunction to prevent the publication by Vetplus of scientific results relating to a Boehringer product.

The test results (which had been provided to VetPlus in confidence) were to due to be published in a press release. Boehringer argued that release of the results could have denigrated its product and provided scientific studies carried out by itself and third parties to demonstrate that the tests in question were not reliable.

Patten J, applied Cream Holdings Ltd and others v Banerjee [2004] 4 All ER 617 and held that the claimants were “more likely than not” to succeed at trial and considered it appropriate in the circumstances to prevent publication pending trial. This was not a case in which irreversible harm would be caused, and illustrates the different tests applicable to obtaining interim injunctions in different circumstances.