Earlier this month the Chancery Division found itself faced with a privacy issue of the kind more usually confined to the Queen’s Bench. The result was a favourable decision from Mr Justice Briggs which will no doubt encourage Claimant privacy lawyers to venture to the Chancery Division more frequently when the opportunity arises.
The case in question was Rocknroll v NGN Limited. Mr Justice Briggs granted an injunction restraining The Sun from publishing photographs of the Claimant on the grounds that it was necessary to restrain the misuse of private information and to prevent copyright in the photos being infringed. The inclusion of the copyright element in the application was presumably the reason for issuing in the Chancery Division.
The photos in question had been taken at a private fancy dress party at the Claimant’s former wife’s home and then posted on Facebook by a friend of the Claimant (Mr Pope), without the Claimant’s consent. They show him partially naked, engaged in what the Claimant himself described as ‘rather silly, schoolboy-like behaviour’. The Claimant has recently come to the attention of the press due to his relationship with the actress Kate Winslet, who he married in December 2012.
The arguments on privacy
There were three key elements to the Claimant’s case on privacy:
- The Claimant had a reasonable expectation of privacy in relation to the photos as they were taken at a private party on private premises and showed him behaving in a way in which a reasonable person of ordinary sensibilities would consider it offensive to have published in a national newspaper;
- There was no public interest in publishing the photos; and
- Publication of the photos would cause real harm and distress to the Claimant, his new wife and her children.
The Sun disputed every one of these elements. Its position was that:
- The Claimant was a public figure with a restricted expectation of privacy (both previous to and because of his marriage to Ms Winslet);
- The Claimant had waived any right to privacy in relation to his life with his former wife because he courted publicity in connection with his marriage to her in 2009 including by giving an interview to Hello! magazine about the wedding;
- The photos were in the public domain anyway as they had been posted on Facebook, and had been taken with the Claimant’s consent;
- The photos showed behaviour which the public could legitimately criticise and so contributed to a matter of legitimate public debate. The Sun’s Article 10 rights should be given more weight than the Claimant’s Article 8 rights;
- Against all those considerations, the speculative risk of harm to Ms Winslet’s children could not tip the balance the other way.
Unsurprisingly, Mr Justice Briggs was unimpressed by The Sun’s arguments. He held that the Claimant’s Article 8 rights were clearly engaged because the photographs were taken at a private party on private premises and showed him behaving in a way he wouldn’t behave in public. The Judge dismissed the fact that the Claimant had consented to the photos being taken as irrelevant, saying ‘I consider it most unlikely that, at trial, the defendant would establish that in consenting to the taking of the photographs, the claimant intended to consent to their publication in a national newspaper’. The fact that the Claimant had participated in publicity regarding his first marriage was also held to make no difference - not only was that an isolated incident, but the Judge noted that the Claimant had done nothing to promote his relationship with Ms Winslet to the press. The Judge’s view was that NGN’s reliance on the fact that the Claimant had previously courted publicity was no more than an example of the discredited ‘zone’ argument (i.e. the argument that once a person has courted publicity about some aspect of his/her life, he/she as a result has permanently waived privacy in relation to that aspect of his/her life).
In relation to the Facebook point, the Judge pointed out that a string of recent authorities has established that an injunction can be refused if the defendant can show that there is no longer anything by way of privacy left to be protected. However he found that this was not the case on this occasion, as there was ‘no evidence to suggest that there had by that time been widespread public inspection of Mr Pope’s photo albums on his Facebook account, in which the Photographs were to be found’.
Taking everything into account, Mr Justice Briggs was of the view that ‘the claimant has a substantially better than even chance of establishing at trial that he has a reasonable expectation of privacy in relation to the Photographs and their contents, privacy that is from publication in a national newspaper, despite the limited circulation which they may already have achieved on Facebook’.
The Judge roundly rejected The Sun’s ‘public interest’ argument, asserting that the paper did not have ‘anything like a better than even chance’ of succeeding in persuading the court at trial publishing the photos was in the public interest. The fact that The Sun’s counsel had submitted to the court that his client wanted the matter to be dealt with quickly so that publication could take place as soon as possible after the marriage of the Claimant to Ms Winslet helped to persuade the Judge that The Sun’s true motivations were ‘simply to satisfy the interest of its readership in the private peccadilloes of the rich and famous’.
Prior to issuing the application, the Claimant had accepted an assignment of the copyright in the photos from Mr Pope. This meant that as well as running his arguments on breach of confidence, the Claimant was also able to apply to restrain the publication on the basis that copyright in the photos would be infringed. Mr Justice Briggs held that he was ‘satisfied that, on the evidence as it stands, the claimant has a much better than even chance of obtaining an injunction to restrain the breach of copyright inherent in the threatened publication of the Photographs’.
The Judge raised the interesting issue of the balancing act which arises where an application for an injunction to restrain a threated infringement of copyright would adversely affect a defendant’s Article 10 rights. The Judge posited that it would in theory be possible that the court would decline to grant an injunction to restrain breach of copyright if such injunction would impinge on a defendant’s right to freedom of expression. He said that in a case where the claim was pursued for purely commercial reasons damages may well be an appropriate remedy in any event. However, he thought that it would be unlikely that such a situation would arise often because, as with the case before him, ‘the claim in copyright would merely prohibit the actual copying of the Photographs, rather than a description in words of their content. In those circumstances an injunction merely to restrain copying of the Photographs would constitute no disproportionate fetter upon the defendant’s Article 10 rights’.
Taking all of the above into account, in matters of breach of confidence, a two-pronged privacy/copyright approach is advisable where possible and appropriate in order to maximise the chances of a successful injunction application, particularly if Mr Justice Briggs’ fellow Chancery judges are minded to follow the Judge’s sensible example in this case.
Practitioners should give thought, perhaps, to how confidentiality agreements, issued for example on behalf of celebrities to those who come into contact with them, can include an assignment of rights in favour of their clients, to better the chances of making such dual applications.