Many will recall the furore when the Prince of Wales sought to restrain the press from publishing his handwritten journals containing personal thoughts and opinions relating to his overseas tours, which he claimed were confidential. He successfully obtained an interim injunction to prevent publication of the journals, pending trial. That trial has now taken place.
Whilst successful in his claim, Prince Charles may have effectively scored an own goal for those seeking to protect their privacy in the future. This is because of the impact of his claim on interim injunctions to prevent publication of confidential information before trial. Such interim injunctions are obtained at short notice and are necessary because a full trial on whether the information is properly confidential might not take place for many months or even years. As a result the interim decision of the court often decides a case and can make or break reputations. Many would say that the answer is obvious – do not publish, but why should something not be published for many years if the Claimant has raised a spurious claim to confidentiality? A body of law which seeks to balance the conflicting rights of Claimants and Defendants has developed which set down the tests that the court will follow in deciding whether to grant an interim remedy. Now, following Prince Charles's claim, the balance appears to have shifted away from the Claimant.
The wonderfully named American Cyanimid case, which is the lead case in this area, set out various principles. These principles do not require the Claimant to pass the (high) test of whether he has a strong case, but establish a less challenging test: are there serious questions to be tried? If this first ‘serious question to be tried’ test is passed, the Court asks itself whether it would be more convenient to grant or not to grant the interim injunction. These principles allowed for a case by case assessment of matters and in general allowed the Claimant a good chance of arguing that there should be an interim injunction pending trial.
Now, pending trial, Prince Charles's case seems to suggest that a Claimant seeking an interim injunction to restrain publication of confidential information is unlikely to be successful unless he can show that he is ‘likely to succeed at trial’. You may think that this subtle change of emphasis is not important. However, this is a much higher hurdle to overcome than the ‘serious questions to be tried’ test. This decision may have tipped the balance in favour of the press as opposed to freedom of the individual to keep his secrets secret.
The Prince of Wales' claim was based on the tort of breach of confidence (otherwise described as misuse of
private information), i.e. an individual is entitled to keep their secrets well…secret. This area of law has seemingly been driven by the rich or aristocratic – the most famous being the case of Argyll v Argyll where the Duchess of Argyll successfully prevented her husband from spilling the beans on their marriage secrets to the world. More recently Naomi Campbell and Catherine Zeta Jones (in the infamous Douglas v Hello! case) have relied on this principle.
The right has been summed up thus: ‘there is an inherent public interest in individual citizens and the state having the enforceable right to the maintenance of confidence. Life would be intolerable in personal and commercial terms, if information could not be given or received in confidence and the right to have that information respected and supported by the force of law’.
Against this wholly legitimate and reasonable right to confidence is the issue of the freedom of expression, or more practically, freedom of the press and the public interest which appears to demand that secrets that otherwise would have been secret should be published.
Such arguments have raged to and fro and have been brought into focus by the Human Rights Act which provides for the right to a private life. In all such cases where confidence is alleged, there must be three elements:
- The information must have the necessary quality of confidence about it;
- The information must have been imparted in circumstances where the confidant ought reasonably to have known information had been imparted in confidence; and
- 3 There must be unauthorised use of disclosure of that information to the detriment of the party communicating it.
Here the Court found that, whilst widely distributed amongst his friends, Prince Charles' journals were confidential and that there was no overwhelming public interest in publishing them.
The Human Rights Act (most recently castigated in the press for allowing the headmaster, Philip Lawrence's killer to remain in England after he is released from prison because of his right to a home life) had a major influence on this decision. The Human Rights Act provides that there is a right to a private life under article 8, but there is also a right to freedom of expression under Article 10. Here is where the tension exists: these two rights can, and often do, clash.
The Human Right Act resolves this tension in relation to interim injunctions in Section 12(3), which states that ‘no such relief [an interim injunction] is to be granted as to restrain the publication before a trial unless the Court is satisfied that the Applicant is likely to establish that the publication should not be allowed’. Section 12(4) goes on to provide that freedom of expression is an issue to which the Court must have particular regard. This provision of the Human Rights Act now appears to be the determining factor in deciding the balance of convenience whether to grant an interim injunction or not. This ‘ultimate balancing act’ performed by the Court is, therefore, being tilted in favour of permitting publication rather than not.
This new twist in the right to privacy saga may yet encourage the "feral beast" that is the press to become more invasive as it will be harder for a Claimant to argue that their claim is likely to succeed. For those who thought that there was a growing privacy law, at least in the issue of interim injunctions, think again. As it is,
Prince Charles has managed to persuade the Court that he is entitled to succeed and, therefore, his journals, sadly for us, still remain hidden from view except for the select few to whom access was granted.