APPENDICES
¶3.86 It will be relevant to consider whether repeated publication is likely to engage Article 8 and
further invade privacy. For example, in Douglas v Hello! Ltd (No.3) all members of the House of Lords accepted that privacy could be invaded by further publication of information or photographs already available to the public.209
¶3.87 Where information is put into the public domain by claimant themselves, the mere fact that
a claimant has made limited disclosures about a particular area of his or her private life will not necessary prevent a claim for further, unauthorised publication of material in the same area.210 However, previous disclosure by the claimant may limit the scope of reasonable expectation of privacy in a particular case. In Axel Springer the fact that a well known actor "had actively sought the limelight" in the past, revealing details about his private life in a number of interviews, meant that his "legitimate expectation" that his private life would be effectively protected was thereby reduced.211
¶3.88 In X & Y v Persons Unknown the Court held that there is a real distinction between what is
written about an individual on the one hand and what he or she himself puts or agrees to put into the public domain on the other.212 Eady J, in granting an injunction against further dissemination of allegations about the state of the claimants' marriage carefully scrutinised the press cuttings produced by the defendant containing references to or quotations from the claimants, noting that careful attention needed to be paid by the court as to how information had been made public – distinguishing between celebrities being prepared to go along with 'lifestyle' pieces without wishing to cross boundaries into personal relationships and those who took the view that any publicity is good publicity. It is clear there is no hard and fast rule and in each case the court will have to examine the specific evidence and make an evaluation (on which, inevitably, there may be room for differing opinions).
¶3.89 In Ferdinand v MGN Ltd Nicol J did not accept the argument that the Claimant had no
reasonable expectation of privacy because explicit details about his sex life were already in the public domain as a result of the publication of previous articles (some of which resulted from disclosures by him, and others where he had not denied them or taken any action).213 Nicol J stated that:214
1881"the Claimant had not, before the article, disclosed anything about his relationship with [a particular woman]. It is not necessary to consider whether in an extreme case there would be some merit in the argument that widespread and extensive discussion by a person of similar aspects of their private life would disentitle them to have a reasonable expectation of privacy. The present case is nowhere near that extreme. In this context, the Claimant was also entitled to say that the articles alleging affairs with other women were not published with his consent and the fact that he had not litigated them could not be taken as his tacit acceptance of another article, let alone another article about a different woman."
¶Appendix 4 | Legal Materials
¶Place where the conduct occurs 3.90 As a general principle a person is entitled to expect that information about their behaviour in
their home or another private place is and will remain private. However, protection of activities undertaken in public, in particular photographs or video recordings, has been expanded by the case law. For example, in Campbell the majority of the House of Lords concluded that the publication of photographs taken in a public place was actionable. In Murray the Court of Appeal held that a child of famous parents arguably had a reasonable expectation that photographs would not be taken of him for publication whilst in a pushchair on a public street. The circumstances in which the photographs were taken is also relevant, this issue has been addressed recently in Von Hannover (No 2) in which the Court held that there was not infringement of Article 8 by the publication of photographs taken in public (namely in a street of a skiing resort). The ECtHR held that the domestic court was correct to analyse the circumstances in which the photographs were taken including whether they have been taken surreptitiously or in a climate of harassment, but that there was no evidence to suggest that this was the case.215
"that provided the matter complained of is by its nature such as to attract the law of breach of confidence, then the Defendant cannot deprive the claimant of his Article 8 protection simply by demonstrating that the matter is untrue".
¶Latham LJ went further in his concurring judgment, saying that:
"..the truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry."
¶3.92 The rationale for this approach appears to be that the courts are reluctant to require a
claimant to spell out which of the allegations are true or false, Eady J observing in Beckham v Gibson that this would defeat the purposes of the injunction.217 This marks a departure from the law relating to breach of confidence where it has long been held that there can be no confidentiality in false information. Therefore in the context of a tort of misuse of private information, the truth or falsity of the information disclosed is of minor relevance, although in Campbell, it was observed by Lord Hope that:218
"there is a vital difference between inaccuracies that deprive the information of its intrusive quality and inaccuracies that do not".
¶Stage 2 – Balancing exercise between Articles 8 and 10 3.93 The second stage has been referred to by the Courts as the "ultimate balancing test" and the
1882"parallel analysis" and requires an assessment of the comparative importance of the two rights.