APPENDICES

APPENDICES

¶3.49 Information relating to physical or mental health has been held to lie at the heart of the

protection afforded by Article 8.155 The courts have recognised that personal information about individuals held in medical records, reports or interviews is both confidential and private: Venables v News Group Newspapers Ltd.156 In Campbell the House of Lords recognised that the Claimant's therapy for drug addiction related to treatment directed at her physical and mental health and was akin to the private information contained in medical records, although Lady Hale identified that not every statement about a person's health will carry the "badge of confidentiality".157

¶3.50 Sexual behaviour and sexual orientation are an aspect of private life and are protected by

Article 8. For example, the ECtHR in PG and JH v United Kingdom held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected under Article 8.158

¶3.51 In Mosley v News Group Newspapers Ltd, Eady J considered in some depth the extent to

which revelations concerning sexual relations could lawfully be made by the media.159 Among other things, he reasoned as follows:160 "It has now to be recognised that sexual conduct is a significant aspect of human life in respect of which people should be free to choose".

¶3.52 The judge noted that anyone indulging in sexual activity is entitled to a degree of privacy,

especially if it is on private property and between consenting adults.161 In articulating the standards expected of the media in this context, Eady J expressed his view that it is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law, and this is the case whether the motive for such intrusion is merely prurience or a moral crusade:162 "It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose". "…where the law is not breached ... the private conduct of adults is essentially no-one else's business. The fact that a particular relationship happens to be adulterous, or that someone's tastes are unconventional or "perverted", does not give the media carte blanche".

¶3.53 Whether there is a reasonable expectation of privacy between parties to a sexual relationship

depends on the circumstances, and where the sexual conduct amounts to unlawful conduct, or conduct that is grossly immoral, that may prevent the claimant from protecting the information relating to it. The length of the relationship may be relevant. An expectation of privacy may not be reasonable in relation to a fleeting encounter, in contrast to a long term relationship.163

¶Appendix 4 | Legal Materials

¶3.54 It is also important to note that the law more readily protects the details of a sexual

relationship than the mere fact of a sexual relationship, or than the fact of sexual orientation per se. In Goodwin v NGN Ltd it was held that the fact that details of a sexual relationship are confidential or private does not necessarily mean that the bare fact of a sexual relationship is private, citing by way of example the case of Ntuli in which the judge at first instance had granted an anonymised Claimant an injunction restraining an anonymised Defendant from publishing, amongst other information "the fact that the Claimant had a relationship with the Defendant".164 The Court of Appeal in that case varied the injunction, and named the parties and the fact of their relationship. Maurice Kay LJ observed that:165 "the material in respect of which Mr Donald has been found to have a reasonable expectation of privacy is not detailed in the judgment. The material in the judgment does not attract a reasonable expectation of privacy."

¶3.55 The approach of the Court to the issue of whether there is a reasonable expectation of privacy

in respect of a sexual relationship and sexuality can be further illustrated by Trimingham v Associated Newspapers Ltd. Both cases reveal that the fact of a relationship may, or may not, attract a reasonable expectation of privacy depending on the particular circumstances of each case, although the statement in Goodwin that it is rarely realistic for partners in a relationship to expect that the fact of their relationship will remain confidential between the two of them for a long or indefinite period may signal an approach which tends towards disclosure of the fact of the relationship.166

¶3.56 In Goodwin, the court explained that the circumstances why there might be a reasonable

expectation of privacy of the fact of the relationship include when an abusive family will not allow the couple to be together and the fact of the relationship being known could create a risk of harm. By contrast, circumstances why the fact of a relationship may not attract a reasonable expectation of privacy include those where parties to a relationship are proud of, or at least content to disclose, the relationship. The court held there was not a reasonable expectation of privacy of the fact of a relationship between Fred Goodwin, the then Chief Executive of RBS and 'VBN', an employee of RBS, relying on the following reasons. Firstly, if an employee has a sexual relationship with a more senior person in the company there are any number of possible misunderstandings and grievances (whether well founded or not) that can arise if the fact of the relationship is not known, at least to the work colleagues of the more junior of the two partners to the relationship. Secondly, the extent to which men in positions of power benefit from that power in forming relationships with sexual partners who are less senior within the same organisation is also a matter which is of concern to an audience much wider than the work colleagues of either partner in the relationship. The court held that whatever limits there may be to the legal concept of a public figure, or of a person carrying out official functions, Fred Goodwin came within the definition, and distinguished him from sportsmen and celebrities in the world of entertainment, who do not come within it.167

¶3.57 However, the court held that VBN did have a reasonable expectation that her name would not

be published by the press. The court permitted disclosure of her job description, even though the court recognised that this might lead some people to identify her, on the basis that she was unlikely to establish that prohibiting publication of her job description was necessary and proportionate for the protection of her rights.168