Press standards, privacy and libel - Culture, Media and Sport Committee Contents

2  Privacy and breach of confidence


9. Until 2000, private information could only be protected under English law by recourse to legal remedies such as breach of confidence (see paragraphs 103 to113 below), contempt of court, defamation, malicious falsehood, trespass and nuisance.

10. On several occasions in the past half-century, Parliament considered introducing a general law of privacy. Bills were introduced in 1961[6] and 1969,[7] but neither went beyond a second reading. In 1989, after two private members' bills concerning privacy completed the House of Commons Committee stage, the Government of the day asked Sir David Calcutt QC to conduct an inquiry. Sir David's report, Privacy & Related Matters, recommended that the media should set up a complaints body but warned that, if this did not prove effective, a statutory tribunal should take its place.[8] In 1992, Sir David reviewed the work of the new Press Complaints Commission and concluded that it had failed and a privacy law was required. His proposal was not taken up.[9] Instead, in 1995 the then Secretary of State for National Heritage, Virginia Bottomley MP, announced that the Government would focus on improving self-regulation.[10] Important change came when Parliament passed the Human Rights Act 1998, which came into force in 2000 and, in effect, incorporated the European Convention on Human Rights (ECHR) into UK law.[11]

11. Before we pass on to considering the impact of the Human Rights Act, it should be noted that the approach to privacy law in the UK both before and since 2000 stands in contrast to the approach elsewhere in Europe. In France, for example, the right to privacy is held to be implicit in the constitution,[12] and the French Civil Code has included a specific right to privacy since 1970.[13] Rights to control over personal information have been strictly interpreted by the French courts.[14] In Germany, meanwhile, the Federal Constitutional Court has recognised the citizen's right to personal respect, including a right to control one's own image in private life. A German court held that the publication of photographs of Princess Caroline of Monaco with her children breached her constitutional rights.[15] In Italy recently, too, Prime Minister Silvio Berlusconi has had recourse to privacy laws over the use by Italian and Spanish publications of photographs taken at private parties he held, which were allegedly attended by escort girls.[16]

12. Privacy laws tend to reflect the media cultures in which they operate, and, as we were reminded during our visit to Spain, these can be very different from the UK's. Staff at La Vanguardia told us that their newspaper would publish a story about a footballer having an extra-marital affair, but not a story about a politician having an affair. They explained that this was because the footballer's professional performance might be affected while the politician's would not, and also because readers would not be interested in a politician's affairs. The same news values do not apply in Britain.

The Human Rights Act

13. In passing the Human Rights Act, Parliament did not introduce specific rights for individuals into UK law, but required public authorities, including courts and tribunals, to act in accordance with the rights set out in the European Convention on Human Rights of 1950.[17] Parliamentary sovereignty over Convention rights was retained, since public authorities are protected if an action contravening Convention rights is giving effect to, or trying to give effect to, primary legislation.[18]

14. The Convention guarantees to everyone a right to privacy and a family life through Article 8, and the right to freedom of expression through Article 10.

15. Article 8 states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

16. Article 10 states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

17. No one Convention right has priority over another, so when a conflict arises between the Convention rights of the parties in a case, the courts are required to carry out a balancing exercise.

18. The balance was explored by the courts, notably, in the case of Campbell v Mirror Group Newspapers which was decided in 2004.[19] The model Naomi Campbell was photographed leaving a Narcotics Anonymous meeting. The Daily Mirror published the photographs together with (inaccurate) details of Ms Campbell's treatment and history of drug addiction. In the subsequent court case, it was accepted by both sides that Ms Campbell's repeated 'public lies' that she did not have a drug addiction justified reporting evidence to the contrary. Article 8, however, was held to apply to the details of her treatment, as she had a 'reasonable expectation' that these would remain private.

19. The balance was further explored in Douglas v Hello! Ltd. (No. 3) from 2005, in which the House of Lords held that the actors Catherine Zeta-Jones and Michael Douglas had a right to protect private information, specifically photographs of their wedding. In His Royal Highness the Prince of Wales v Associated Newspapers Ltd in 2006,[20] the Court of Appeal found that Article 8 covered a travel journal, written by the Prince of Wales, which had a reasonably wide circulation. The Court rejected the newspaper group's argument that there was a public interest in publishing comments contained in the diaries on the Chinese politicians and officials at the handover dinner in Hong Kong in 1997.

20. Judges have continued to stress the importance of Article 10. In his judgment in Jameel v Wall Street Journal in 2006,[21] Lord Bingham commented:

    "The central importance of this Article in the Convention regime is clear beyond question [...]. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote."[22]


21. The potential difficulties in balancing the right to privacy and the right to freedom of speech were apparent at the time the Human Rights Bill was before Parliament, and the media and the judiciary both raised concerns about them. The then Lord Chief Justice, Lord Bingham, said during the passage of the Bill:

    "Discussion of the new Bill so far would suggest, I think rightly, that one of the most difficult and sensitive areas of judgment will involve reconciliation of the right of privacy guaranteed by Article 8 with the right of free expression guaranteed by Article 10. While the law up to now afforded some protection to privacy (in actions for breach of confidence, trespass, nuisance, the new tort of harassment, defamation, malicious falsehood and under the data protection legislation) this protection has been patchy and inadequate. But it seems very likely that difficult questions will arise on where the right to privacy ends and the right to free expression begins. The media are understandably and properly concerned that the conduct of valuable investigative journalism may be hampered or even rendered impossible. It is very difficult, and probably unwise, to offer any opinion in advance about where the line is likely to be drawn."[23]

22. In response to such concerns, Lord Wakeham introduced in the House of Lords an amendment which became section 12 of the Human Rights Act, as follows:
12 (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -

(a) the extent to which -

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section -

"court" includes a tribunal; and

"relief" includes any remedy or order (other than in criminal proceedings).

23. The intention was to set a higher bar for the granting of injunctions that might impact on freedom of expression. While someone applying for an interim injunction in any other type of civil case is only required to show that there is a 'serious issue to be tried', section 12(3) above requires the claimant to have a case 'sufficiently favourable to justify [an injunction] in the circumstances of the case'.[24] This has been interpreted by the courts as meaning that claimants must show that they have a better than 50 per cent chance of success if the matter were to come to trial.

24. During the passage of the bill the then Home Secretary, the Rt Hon Jack Straw MP, was confident that this would provide an adequate safeguard to the press: "[section 12 will] send a powerful signal to the United Kingdom courts that they should be at least as circumspect as judgments of the European Court of Human Rights have been about any action that would give the article 8 rights any supremacy over the freedom of expression rights in article 10. I hope and believe that an amendment along those lines will deal satisfactorily with the concerns of the press."[25]

25. He also felt that section 12 would benefit the self-regulatory system: "[it] provides an important safeguard by emphasising the right to freedom of expression. Our intention is that that should underline the consequent need to preserve self-regulation. That effect is reinforced by highlighting in the amendment the significance of any relevant privacy code, which plainly includes the code operated by the PCC."[26]


26. We have heard varying opinions on the impact of section 12, both on the balance between Articles 8 and 10 required by the courts and on the use of injunctions. Marcus Partington of the Media Lawyers Association told us:

    "I think section 12 has failed to do what Parliament intended it to do; which was clearly that the courts were to give freedom of expression a greater stress than they actually have. The truth is now, we believe, that it is very easy to get through the Article 8 doorway, but it is much harder to defend something in Article 10 terms."[27]

27. Rod Christie-Miller of Schillings solicitors had reservations about the operation of section 12, but acknowledged the difficulties inherent in the decision to grant an injunction:

    "Personally, acting for claimants, I think the judges have made individual decisions which I would rather they had not made. I would rather they were more claimant-friendly and the media will say exactly the opposite, that they would rather the judges apply this in a more defendant friendly manner, but the judges are applying an intense focus on the specific facts and are deciding whether or not something is likely to be injuncted at a trial or not."[28]

28. In written evidence to us Professor Julian Petley, of the Campaign for Press and Broadcasting Freedom, commented that "the ECHR has had a salutary effect in requiring the courts to balance competing claims to the right to privacy and the right to press freedom, with a clear presumption in favour of the latter."[29] The Lord Chancellor, the Rt Hon Jack Straw MP, agreed, telling us that while "they [the media] have concerns about particular decisions in the courts, not least in the Mosley case, section 12, as the Master of the Rolls has spelt out, has worked to their advantage without any question."[30]

29. In oral evidence to us, the then Master of the Rolls explained the difficulties facing judges making decisions on interim injunctions:

    "section 12 should operate to give judges great cause for concern before granting it, even late at night on a Saturday night. It is quite true that, across the board, generally, for those of us who have been on duty late at night on a Saturday night when you have been given some terrible story, in most cases the sensible thing to do is to grant the injunction, to hold the ring until Monday, because, mostly, the balance of convenience or the balance of justice is to say, 'Let's decide that now, and then the thing can be thought out and decided on a Monday."[31]

30. We have been told, however, that appeals against the refusal to grant or for the lifting of interim injunctions may lead to lengthy delays and enormous costs. In May 2009, Ian Hislop, editor of Private Eye, told us about a case in which he was involved:

    "We attempted to run a story in January [2009] and we still have not been able to run it. The journalist involved put it to the person involved, which was an error; there was an immediate injunction; we won the case; they have appealed; we are still in the Appeal Court. Essentially it is censorship by judicial process because it takes so long and it costs so much."[32]

31. The case involved Michael Napier, a former president of the Law Society, and the refusal by Mr Justice Eady to grant an injunction, on grounds of confidentiality, about the outcome of professional complaints made against Mr Napier and his firm. The Court of Appeal subsequently refused to overturn the ruling, following which Mr Napier resigned from his position on the Legal Services Board.[33] Private Eye estimated that had it lost, the bill for both side's costs would have been some £400,000; and had the case gone to the House of Lords, it would have been at risk for £600,000. The magazine said it had originally intended to publish two paragraphs on the issue.

32. We understand that the refusal by a court to grant an injunction does not necessarily mean the defendant can publish straightaway: if the claimant appeals the decision, then the Court of Appeal has to hold the ring, pending the outcome of that appeal. That said, it seems to us wrong that once an interim injunction has been either refused or granted in cases involving the Convention right to freedom of expression a final decision should be unduly delayed. Such delay may give an unfair advantage to the applicant for the injunction as newspapers often rely on the currency of their articles. We recommend that the Ministry of Justice should seek to develop a fast-track appeal system where interim injunctions are concerned, in order to minimise the impact of delay on the media and the costs of a case, while at the same time taking account of the entitlement of the individual claimant seeking the protection of the courts.

33. We have heard concerns from a number of witnesses that interim injunctions are frequently applied for out-of-hours, and are therefore heard by duty judges who may lack specialist knowledge. Ian Hislop told us: "I have to say if you go for an injunction in the middle of the night or on a weekend or a Saturday, you get a judge who does not know a great deal about this sort of thing and they give the injunction."[34]

34. Paul Dacre, editor of the Daily Mail, commented, in relation to the News of the World's exposé of Max Mosley:

    "If it had been a Saturday morning you would have had a part-time judge on who would not be expert in defamation or privacy. Almost certainly that judge would have granted an injunction. Almost certainly it would have got bogged down in the long grass and taken several weeks."[35]

35. Peter Hill, editor of the Daily Express, had similar concerns: "I can assure you that injunctions are granted on very flimsy grounds often, not always, but by judges who are not necessarily highly qualified in that area."[36]

36. A further concern on which we have received evidence is the apparently growing practice of widely-drawn injunctions being received by newspapers and other publications, binding them, though they have had no opportunity to contest the order. These are unrelated to those regularly granted by the Family Division of the High Court to preserve the anonymity of children and to which the press rarely takes issue. From his experience, Mr Hislop estimated that the courts were issuing new such injunctions about once a fortnight:

    "[…] since the beginning of 2008 Private Eye has begun to receive a number of privacy injunctions granted at hearings of which it had no prior notice and designed to prevent the media generally from publishing allegations about individuals, usually well-known celebrities. In these instances, Private Eye has been sent copies of the court order, although it was not a defendant in the proceedings (orders which are sometimes made against "persons unknown")."[37]

37. Any meaningful consideration of the impact of Section 12 on the use of interim injunctions requires a basis of statistics relating to the number of injunctions granted or refused and how many claimants are subsequently successful at trial. It seems that these data do not exist. During our inquiry, the then Master of the Rolls was able to give us limited information,[38] but Bridget Prentice, Parliamentary Under-Secretary of State for Justice, confirmed in response to a written parliamentary question that the High Court only collects figures on the number of applications for injunctions, not the outcome of those applications.[39] Without appropriate data on injunctions we are unable to come to definitive conclusions about the operation of section 12 of the Human Rights Act, nor do we believe that the Ministry of Justice can effectively assess its impact. We recommend that the Lord Chancellor, Lord Chief Justice and the courts should rectify the serious deficiency in gathering data on injunctions and should commission research on the operation of section 12 as soon as possible.

38. We do not overlook the fact that, in Cream Holdings v Bannerjee, the House of Lords held that the effect of section 12(3) of the Human Rights Act was that, in general, no injunction should be granted in proceedings where Article 10 was engaged unless the claimant satisfied the court that he or she was more likely than not to succeed at trial. Although there is little statistical evidence available, we are nevertheless concerned at the anecdotal evidence we have received on this matter. Section 12 of the Human Rights Act is fundamental in protecting the freedom of the press. It is essential that this is recognised by the Courts.

39. It is entirely understandable, as news and gossip spread fast, that parties bringing privacy (and confidence) cases may wish to bind the press in its entirety, not just a single enquiring publication. On the face of it, however, this appears contrary to the intention behind section 12, if the press has not been given proper notice and opportunity to contest an injunction. We recommend, therefore, that the Lord Chancellor and Lord Chief Justice also closely review these practices.

Max Mosley and the News of the World

40. On 30 March 2008, the News of the World revealed that Max Mosley, then president of the Federation Internationale de l'Automobile (FIA), had engaged in a sado-masochistic sex session with a number of women.[40] The front-page headline declared 'F1 Boss has Sick Nazi Orgy with 5 Hookers', and the report, written by chief reporter Neville Thurlbeck, referred to an 'SS-style medical examination', orders being 'barked' in German and 'mock death camp' uniforms.[41] Mr Mosley is the son of Oswald Mosley, founder of the British Union of Fascists. The story had been obtained with the help of one of the women participants in the session, later known as Woman E, who secretly filmed the proceedings using a camera supplied by the News of the World and who was paid £12,000 by the paper.

41. The video was published on the News of the World website and was viewed hundreds of thousands of times. It was removed on 31 March 2008 pending an application by Mr Mosley for an injunction against its continued dissemination, which was heard on 4 April 2008. The video was returned to the website after Mr Justice Eady ruled that it had already been so widely viewed that further viewings could make 'very little practical difference'.[42]

42. On 6 April 2008, the News of the World repeated its allegations, under the headline 'My Nazi Orgy with F1 Boss'. Devoting four pages to an account of the sex session by Woman E, it dismissed assertions by Mr Mosley that there had been no Nazi theme, quoting Woman E as stating that Mr Mosley had specifically 'ordered' the theme.[43]

43. Mr Mosley sued the News of the World for breach of confidence and/or unauthorised disclosure of personal information amounting to a breach of his Article 8 right to privacy under the European Convention on Human Rights. Following a full trial in the High Court, the details of which were widely reported in the press, Mr Justice Eady found that the newspaper had breached Mr Mosley's right to privacy. He also noted that Woman E had committed 'an old fashioned breach of confidence', as well as a violation of the Article 8 rights of all those involved.[44] Mr Mosley asked for exemplary or punitive damages from the News of the World essentially as a deterrent, but the court found that not only was there no power to award such damages, but also that there would, in any event, be insufficient grounds to do so.[45]

44. Mr Mosley's victory did not reverse his failure to obtain an injunction restraining publication of the video taken by Woman E, although it is not now on the News of the World website. We consider the consistency of this ruling with other cases concerning breach of confidence - including Barclays bank and the Guardian in March 2009, and the recent action involving Trafigura, Carter-Ruck solicitors and the Guardian again - see paragraphs 107 to 113 - addressing the issues of prior restraint and injunctions.

45. The News of the World's defence in court included the contention that publication of the story had been in the public interest, and that this was a case where Article 10 of the ECHR should trump Article 8. Mr Justice Eady discussed this in his judgment:

    "[…] the argument is raised that the Claimant's right to privacy under Article 8 of the Convention is outweighed by a greater public interest in disclosure, such that the Defendant's right to freedom of expression under Article 10 should, in these particular circumstances, be allowed to prevail. The public interest argument has somewhat shifted as matters have developed. The primary case would appear to be that the public has an interest in knowing of the newspaper's and/or Woman E's allegation that the events of 28 March involved Nazi or concentration camp role-play. A somewhat later variation on the theme, perhaps primarily attributable to the Defendant's legal team, is that what took place was at least partly illegal. It was said that the Defendant was committing offences such as assault occasioning actual bodily harm and brothel-keeping."[46]

46. In oral evidence to us, Tom Crone, legal manager for News Group Newspapers, which includes the News of the World, argued that there had been a public interest in publishing because Mr Mosley had a lead role in Formula One racing and was an international spokesman for the UK automobile associations, the AA and the RAC.[47]

47. In his judgment, Mr Justice Eady said that there might have been a public interest in revealing the Nazi theme of the session, if there had been such a theme:

    "I have come to the conclusion (although others might disagree) that if it really were the case, as the newspaper alleged, that the Claimant had for entertainment and sexual gratification been 'mocking the humiliating way the Jews were treated', or 'parodying Holocaust horrors', there could be a public interest in that being revealed at least to those in the FIA to whom he is accountable. He has to deal with many people of all races and religions, and has spoken out against racism in the sport. If he really were behaving in the way I have just described, that would, for many people, call seriously into question his suitability for his FIA role. It would be information which people arguably should have the opportunity to know and evaluate. It is probably right to acknowledge that private fantasies should not in themselves be subjected to legal scrutiny by the courts, but when they are acted out that is not necessarily so."[48]

48. In the absence of any evidence of a Nazi theme, however, the judge concluded that there was no public interest in revealing non-criminal sexual acts, regardless of their 'unconventional' nature, and found, as a matter of law, that Mr Mosley had not committed any illegal acts. He also criticised the manner in which the News of the World's reached its decision to link the sex session with Nazism, saying it was not based on rational analysis of the evidence:

    "Rather, it was a precipitate conclusion that was reached 'in the round', as Mr Thurlbeck put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of 'mocking' concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with 'responsible journalism'. Returning to the terminology used by Lord Bingham in Jameel […] the judgment was made in a manner that could be characterised, at least, as 'casual' and 'cavalier'."[49]

49. In his judgment, Mr Justice Eady considered how the News of the World had pursued the story following the publication of its exclusive on 30 March 2008. Mr Thurlbeck, the reporter responsible for both the initial article and the follow-up on 6 April 2008, decided to seek an interview with other women involved, besides Woman E. These women were referred to in court as Women A, B, C and D.

50. On 2 April 2008, Mr Thurlbeck sent an email to Women A and B offering money for an interview. On the following day he emailed again in the following terms:

    "I'm just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow-up we have to our story. Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you. This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won't be used or your pictures)."[50]

The judge concluded that this email constituted a 'clear threat' to Women A and B that, if they did not co-operate by giving an interview, their identities would be revealed in the News of the World on the following Sunday.[51]

51. Mr Thurlbeck was cross-examined on this in court, and explained his position thus:

    "I'm not pretending this was an easy choice for them [Women A and B], but it was the only choice. I was a journalist with two stories, one of which I got from my own investigating, and here it was, and the alternative was another story, an interview with them anonymously for which they'd be paid. Those were the choices. I'm not saying it was an easy choice and I'm not saying it was a choice they particularly relished. It was a tough choice but nevertheless they were the only options I could give them. But I thought the second option of talking to me anonymously and for money was a very fair option […]."[52]

52. He did not accept that the exchanges could be seen as blackmail:

    "I'm offering to give them something. I'm offering to pay them money for an anonymous interview. I'm offering to pay them, not to take anything from them, so in that sense I'm not blackmailing them at all. That thought never crossed my mind. I'm offering them a choice."[53]

53. The court concluded: 'It seems that Mr Thurlbeck genuinely did not see the point. Yet it is elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.'[54] The editor of the News of the World, Colin Myler, when cross-examined about the email exchange, accepted that Mr Thurlbeck's communications 'could be interpreted as a threat' and, while saying he was 'not so sure' they amounted to blackmail, could not produce a justification for his reporter's methods.[55] Mr Justice Eady, having sought to clarify whether Mr Myler had challenged Mr Thurlbeck over the emails, concluded that Mr Myler's 'non-answer' revealed that: "it would appear that Mr Myler did not consider there was anything at all objectionable about Mr Thurlbeck's approach to the two women, as he did not query it at any stage. This discloses a remarkable state of affairs."[56]

54. By the time Mr Myler appeared before us, Mr Mosley had issued proceedings against the News of the World for libel in relation to the articles of March and April 2008. Mr Myler was therefore reluctant to comment on these matters. However, a hypothetical question was put to him as to whether it would constitute misbehaviour for a journalist to say to somebody involved in a story that there were two ways of writing it and it was up to them which way it was written. Mr Myler replied: "I think it can be construed as misbehaviour but I think a lot of it depends on exactly what is said. I think that is very important, because two people can have different interpretations of what is meant."[57]

55. In oral evidence to us Tom Crone denied that Mr Thurlbeck's behaviour could constitute blackmail, or that Mr Justice Eady considered that it may amount to such.[58] Having examined the judgment, we cannot agree.

56. A culture in which the threats made to Women A and B could be seen as defensible is to be deplored. The fact that News of the World executives still do not fully accept the inappropriateness of what took place is extremely worrying. The 'choice' given to the women by Neville Thurlbeck was in fact no choice at all, given the threat of exposure if they did not co-operate.

57. We found the News of the World editor's attempts to justify the Max Mosley story on 'public interest' grounds wholly unpersuasive, although we have no doubt the public was interested in it.

Is it time to legislate on privacy?

58. The introduction of the Human Rights Act did not end calls for Parliament to enact legislation on privacy. In June 2003, our predecessor Committee considered the issue and concluded:

    "On balance we firmly recommend that the Government reconsider its position and bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone—not the press alone—into their private lives. This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights. There should be full and wide consultation but in the end Parliament should be allowed to undertake its proper legislative role."[59]

59. In its response the Government disagreed, saying:

    "The weighing of competing rights in individual cases is the quintessential task of the courts, not of Government, or Parliament. Parliament should only intervene if there are signs that the courts are systematically striking the wrong balance; we believe there are no such signs."[60]

60. We subsequently examined the subject of press intrusion in our 2007 Report Self-regulation of the press.[61] We found that the case had not been made for a law of privacy:

    "To draft a law defining a right to privacy which is both specific in its guidance but also flexible enough to apply fairly to each case which would be tested against it could be almost impossible. Many people would not want to seek redress through the law, for reasons of cost and risk. In any case, we are not persuaded that there is significant public support for a privacy law."[62]

61. The development of a generalised 'respect for privacy' by the courts, as required under the Human Rights Act, has inevitably been piecemeal and is likely to remain so for a considerable time given the low number of privacy cases which go to trial. Almost all cases are settled between parties without trial. Only two have been heard in the High Court since January 2008, one of which was Mr Mosley's and the other was not against a defendant in the media and was settled five days into the trial.[63] The low number of substantive privacy cases is not surprising, given the deterrent effect that the prospect of a public trial can have on claimants who are by definition concerned about privacy. Mark Thomson, then of Carter-Ruck, told us: "I have a number of claims where the client would have won, but given that they [the press] published the article, which was deeply embarrassing, they just did not want to go to court and face the full publicity of an action."[64]

62. The high costs of litigation combined with the legal uncertainty, owing to the small amount of case law, undoubtedly discourages the media from contesting privacy cases. Sean O'Neill of The Times told us that in many cases a newspaper lawyer would ask: "We think we would win on public interest, but this privacy law is so uncertain, we don't know where we are going, and is this the one on which we want to make our stand?"[65] While critical of the operation of the current law on privacy, media witnesses were divided on the need for legislation on privacy. Many thought that it would do more harm than good. Paul Dacre said: "unequivocally I would not be in favour of a Privacy Act. I believe it would have a very deleterious effect, a chilling effect, on the press and the media in general."[66]

63. Alan Rusbridger, whose newspaper has not been sued to date for breach of privacy, favoured a wait-and-see approach: "I am much more worried about libel than privacy, and I think what is happening is that judges are being required to balance Article 8 against Articles 10 […] and they have not had very good cases yet and I think probably we have to give it a bit more time, because I do not think there has been a good case where someone has tried to gag a newspaper with a really good public interest defence."[67]

64. However, Ian Hislop felt that the time had come for Parliament to take action:

    "if we are going to have a privacy law or not have a privacy law or we are going to tinker with the elements of privacy, Parliament is where this should be happening, I do not think it should be just left to judges interpreting the Human Rights Act."[68]

65. Tom Crone, the News of the World's lawyer, also expressed his unhappiness with the result of court judgments: "we are very unhappy with the way privacy law has gone as a result of judgments."[69] The Media Lawyers Association also supported legislation to ensure clarity:

    "Determining what is in the public interest or is a "higher priority" to the protection of someone's reputation or privacy has become entirely dependent on the subjective views of a High Court judge. We say that this is not a matter that should be left up to the subjective determination of the judiciary."[70]

66. The Lord Chancellor suggested to us that law in this area would become clearer in time:

    "My experience of decisions in respect of human rights over the years is that some of those which caused the greatest initial excitement have ended in a situation where, because of changed circumstances or appeals to the Court of Appeal or the Law Lords, things have calmed down, because those senior courts have produced a better balance. Since I am a respondent to a large number of cases any day in the courts on human rights bases and others, I can think of a number of cases in my area."[71]

67. The Human Rights Act has only been in force for nine years and inevitably the number of judgments involving freedom of expression and privacy is limited. We agree with the Lord Chancellor that law relating to privacy will become clearer as more cases are decided by the courts. On balance we recognise that this may take some considerable time. We note, however, that the media industry itself is not united on the desirability, or otherwise, of privacy legislation, or how it might be drafted. Given the infinitely different circumstances which can arise in different cases, and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude, therefore, that for now matters relating to privacy should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute.


68. In November 2008, Paul Dacre made a speech to the Society of Editors in which he accused one judge, Mr Justice Eady, of 'introducing a privacy law by the back door'.[72] Mr Dacre subsequently said in oral evidence to us:

    "In my speech I described his judgments as 'arrogant' and 'amoral'. I am aware those are strong words - they are not personal, I am talking about his judgments - but I used those words because I felt passionately that he was adjudicating in matters that Parliament should be deciding, and the fact he was not taking on board Parliament, which represents the public, has huge implications for British society."[73]

69. Ian Hislop also expressed concern that one or two judges might be developing privacy law. He admitted that there had been cases when Mr Justice Eady found in Private Eye's favour, but added: "on balance, it would be better if it was not just him and one other judge making all the law".[74] Roy Greenslade however pointed out that judges are compelled to make decisions on a case by case basis under consistent rules: "It would be said by anyone defending the idea of a statutory control that judges themselves would take everything on a case by case interest. Indeed, that is what Mr Justice Eady - much maligned - does on every occasion; he treats everything on a case by case basis and so that would seem to fall in line."[75]

70. Jeremy Clarke-Williams of Russell Jones and Walker strongly defended the judge to us:

    "[…] if one reads something like the Mosley judgment, I do not think that Mr Justice Eady could have done a more conscientious job in seeking to balance freedom of expression against the rights to respect for privacy and come up with the decision which he did. I think it [section 12 of the Human Rights Act] is being fairly applied. I think to suggest otherwise is to come back to the unfair suggestion that the judges who are determining these cases are in some way biased against the media or biased in favour of an individual's right to respect for privacy and I do not think that is a fair allegation to make."[76]

71. We discussed these matters both with the Lord Chancellor, who has a constitutional duty to defend the independence of the judiciary, and with the then Master of the Rolls, Sir Anthony Clarke. The Lord Chancellor told us that he did not feel it would have been appropriate for him to intervene to defend Mr Justice Eady because the criticism was insignificant:

    "My duty, indeed I swear an oath - three oaths altogether - to this effect: to uphold the integrity and independence of the judiciary. If I had judged that that was being significantly challenged in this case, I might have said something but I did not judge it necessary […]."[77]

72. Sir Anthony Clarke told us that the allegation that Mr Justice Eady was developing a privacy law concerned him because it was simply wrong and showed poor knowledge of court judgments:

    "it is quite important for us to make sure that our judgments are accurately reported, and all the business about whether Mr Justice Eady created a privacy law all by himself would not perhaps have had the publicity it had if people had actually read a lot of these judgments, because it is simply not the case."[78]

73. In Parliament the Joint Committee on Human Rights has already rejected Mr Dacre's allegations outright. In its Annual Report 2007-2008 the Committee commented:

    "Mr Dacre was wrong on a number of counts. The Human Rights Act - which was, of course, passed by Parliament - incorporated Articles 8 (right to a private life) and 10 (right to freedom of expression) of the European Convention on Human Rights into UK law. Parliament required the judiciary to balance these sometimes conflicting rights in making decisions in libel and privacy cases. Far from creating a privacy law to suit his own 'moral sense', Lord [sic] Justice Eady was implementing legislation passed by Parliament in deciding cases such as the recent action by Max Mosley against the News of the World. Indeed English courts have long protected confidential information, good reputation and aspects of personal privacy at common law and in equity, quite apart from Article 8 of the European Convention and the Human Rights Act."[79]

74. Mr Justice Eady has not responded directly in public to the attacks on him, but in a speech to the Intellectual Property Lawyers Association in February 2009 he posited the argument that the application of Article 8 was now so clear that it was inevitable that the media would take out their 'frustration' on first-instance judges rather than pursue a hopeless appeal. He concluded: "I think it simply has to be recognized as an inevitable consequence of adopting the balancing approach and the "intense focus" on the particular facts of the case."[80]

75. The record, in any case, does not sustain the view that Mr Justice Eady has a dominant role in determining privacy law. The leading cases on privacy, Campbell and Douglas, both reached their conclusions in the House of Lords, as would be expected in judgments of such significance. In the cases involving privacy issues where the decision made by the High Court has been appealed to the Court of Appeal, Mr Justice Eady has either not been involved, or his decisions have been almost entirely upheld.[81] As discussed at paragraph 37 above, statistics on many types of injunction are currently not collected. It is noteworthy, however, that the limited information we do have on injunctions shows that, of a total of six contested applications for privacy injunctions, Mr Justice Eady heard three, refusing two and granting one, while the other three applications, heard by different judges, were all granted.[82]

76. We have received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights. While witnesses have criticised some of the judge's individual decisions, they have praised others. If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be successfully appealed to a higher court. The focus on this one judge regarding the development of privacy law, however, is misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual's right to privacy.

Compulsory pre-notification

77. Mr Mosley used his appearance before us to make a case for legislation requiring editors and journalists to give people about whom they write, not just the opportunity to comment, but also notice of their intention to publish, so that such people would have time, if appropriate, to seek injunctions preventing publication. He has also issued proceedings against the UK Government in the European Court of Human Rights seeking a ruling that the Government's failure to enact such a legal requirement constitutes a breach of his Article 8 rights.

78. In his evidence to us, Mr Mosley spoke of the damage done to his reputation by a revelation which was ultimately found to be an unlawful breach of his privacy:

    "I had been doing this [S & M] for 45 years and there had never been a hint, nobody knew […]. No matter how long I live, no matter what part of the world I go to, people will know about it. It is not that I am ashamed of it like I am not ashamed of my bodily functions but I do not want them on the front page of the newspaper."[83]

79. He also described the 'appalling' impact on his family:

    "My wife did not do anything, my sons did not do anything, but they are the ones that feel more embarrassed than anyone [...]. If there was a huge genuine public interest in subjecting a family or individuals to that sort of thing, of course one should do it, but it has to be a very big public interest because the suffering you impose not just on the victim but on his family is really, really serious."[84]

80. Mr Mosley described as unjust a position where newspapers can cause irreparable damage of this kind, and derive commercial benefit from doing so, when they know there is a risk that, much later, the courts will find they have acted unlawfully. He suggested: 'they [the newspapers] should be obliged, in cases where they know that the person is going to object to that publication and there is a substantial chance that he will go to court and could get an injunction, that they should notify him.'[85]

81. Mr Mosley argued that such a requirement would not impinge on the right to freedom of expression, and he felt that a High Court judge was a more suitable person than the editor of a newspaper to make a decision as to whether a story was in the public interest:

    "It is, I would suggest, inconceivable that a judge, where there is serious investigative journalism - unless there are other factors which one cannot speculate on - would give an injunction because that is exactly the basis of a free press, that you can have investigative journalism and it is in the public interest […]. It is the areas where neither The Observer nor The Independent nor Reuters would venture that the red tops and the tabloids go. That is where you get the terrible abuse of the rights of an editor [...]. They actually abuse freedom of the press which is a very valuable thing and they damage the whole of the press by their abuse."[86]

82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World's intention to publish. Mr Myler told us that he and his colleagues at the newspaper were conscious of this: "we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction."[87]

83. Rod Christie-Miller, of Schillings solicitors, agreed in evidence to us that pre-notification was a problem area. He suggested that editors were able to be extremely calculating in considering whether to pre-notify the subject of a story, and that this led to an abuse of power:

    "There have been a number of examples recently where the media knew or suspected that they were going to be publishing something which a court would injunct because it was invasive of somebody's privacy and they decided, 'Well, if we run this and if we tell the target they will probably get an injunction and we will not be allowed to run it. Let's run it anyway.'"[88]

84. Paul Dacre, editor of the Daily Mail, dismissed such an approach in evidence to us as "kamikaze journalism".[89] But evidence of such practices is to be found in diaries published by Piers Morgan, the former editor of the Daily Mirror, which state that he would deliberately publish stories without notifying the subject because he knew that otherwise the person involved would get an injunction.[90]

85. Equally, we heard evidence of editors or journalists who have taken the decision to give notice of an intention to publish, usually with a view to soliciting comments and reaction, only for an injunction to be immediately served or the threat of one to be raised.[91] Ian Hislop described his frustration at making inquiries of the subject of a story only to immediately receive a lawyer's letter threatening action.[92] Alan Rusbridger spoke of fighting a costly legal battle over an injunction while the delay in publication played into the hands of the claimant:

    "The injunction prevented us from publishing information which we believed was important to make known. We would have to spend a great deal of time and money to overturn what seems like a casual piece of censorship by the courts."[93]

86. Nick Davies explained to us the dilemma faced by journalists:

    "the journalist's instinct is to go to the other side to check because you do not want to get caught out with some killer fact then your story is wrong. However, if you are doing a story which could be deemed to be confidential or - which is slightly different but similar - private, you are very, very reluctant to go to the other side because they can injunct you and these injunctions can sit there for months, particularly on breach of confidence."[94]

87. If compulsory pre-notification were introduced, others besides newspapers would be affected. Global Witness, a non-governmental organisation investigating profiteering and human rights abuses resulting from exploitation of natural resources, told us that they feared a compulsory pre-notification requirement could put their staff and sources in danger.[95]

88. Mark Stephens, a lawyer who represents human rights organisations, suggested to us that, to protect vital investigative work, there would have to be a public interest exception.[96] But such an exception, allowing editors not to give notice where there was a pressing public interest, would be difficult to define and to operate, as several witnesses told us. Professor Roy Greenslade put it this way:

    "No-one has ever drafted a perfect definition of public interest. Nick [Davies] has rightly pointed to its fuzziness. Even in the editor's code of practice it is a really wide definition that they have and it is impossible I think to encode the public interest, which is, by the way, a moving feast."[97]

89. We have also heard evidence that pre-notification does not necessarily prevent inaccurate reporting. Gerry McCann told us that pre-notification had not prevented inaccurate stories being published about him and his wife in the UK press: "In terms of advance notice, I would often hear Clarence [Mitchell, the couple's media adviser] on the phone to journalists expressly telling them that the information they had was rubbish. It would not stop it being published."[98]

90. Newspaper editors insisted to us that in the great majority of cases journalists contact the people they are writing about. Paul Dacre said that in '99 times out of 100'[99] the Daily Mail would contact the subject of a story, and Peter Hill, editor of the Daily Express, said:

    "In pretty much every case we do give people the opportunity to respond to something which is about to be written about them or we will go to people and say we have this […]. They might have a complete answer to it. There is the odd story [...] where I think it would not be possible to do that because it would have ended up as an injunction and somehow the story would be lost."[100]

91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.

92. We recommend that the PCC should amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a "public interest" test, and should provide guidance for journalists and editors on pre-notifying in the Editors' Codebook.

93. We have concluded that a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a "public interest" exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.


94. On 12 October 2009, one of the members of our Committee, Paul Farrelly MP, tabled a number of Parliamentary questions, one of which concerned an injunction obtained by Trafigura, a company trading in oil, base metals and other items, preventing the publication of a report on the alleged dumping of toxic waste in the Ivory Coast. Trafigura's solicitors, Carter-Ruck, on learning of Mr Farrelly's question, informed the Guardian that it would be a breach of the injunction if the newspaper reported the question, but agreed to seek instructions from Trafigura on a variation of the order. The Guardian promptly published, initially online and then on the front page of its 13 October 2009 issue, the fact that it was unable to report a tabled Parliamentary question. The internal report Trafigura wanted to suppress was already widely available on the internet.

95. The injunction which both Carter-Ruck and Guardian lawyers believed prevented the reporting of Parliamentary proceedings was a so-called 'super-injunction'. This is a court order which requires that, when an injunction is in place, its very existence may not be disclosed or published. The order in the Trafigura case was granted on 11 September, 2009 by a vacation duty judge, Mr Justice Maddison, at a private hearing of which the Guardian had just a few hours' notice. It also applied to other 'persons unknown' and anyone who became aware of its existence. The injunction was drafted by Carter-Ruck and in this case a third level of secrecy was granted in that Trafigura and subsidiary's identities as claimants were replaced by the random initials 'RJW' and 'SJW'. The case never went to a full hearing, because the tabling of Parliamentary questions is protected by parliamentary privilege and due to the publicity which followed, not least on the internet, Trafigura and Carter-Ruck withdrew the injunction. The Guardian estimated, however, that it would have cost at least £300,000 to go to a hearing, at a time it was making redundancies.

96. It appears that the injunction and secondary court order were not specifically drafted with the aim of preventing the reporting of Parliamentary discussion, and as a result confusion has arisen over whether the injuncted matter could, indeed, be reported when it was referred to in Parliament.

97. The Lord Chief Justice, Lord Judge, took the unusual step of issuing a press release, stating:

    "I am speaking entirely personally but I should need some very powerful persuasion indeed - and that, I suppose, is close to saying I simply cannot envisage - that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect."[101]

We warmly welcome his comments.

98. Section 3 of the Parliamentary Papers Act 1840 provides that 'any extract from or abstract of' a 'report, paper, votes, or proceedings' of Parliament is immune from civil and criminal liability if published in good faith and 'without malice'. The right of the press to report matters in parliament is also codified in statute in Schedule 1 of the Defamation Act 1996. This confers 'qualified privilege', which is again subject to the tests of the report being 'fair and accurate, and published without malice' and generally in the public interest. This clearly covers written questions such as that concerning Trafigura. In a debate on libel in Westminster Hall on 21 October 2009, Bridget Prentice, the Parliamentary Under-Secretary of State for Justice, confirmed that section 3 of the 1840 Act remained in force, and therefore that the Guardian was free to report the text of the question.

99. However, the Minister's assurances were subsequently challenged in a submission to us from Carter-Ruck.[102] While the firm accepted that Article 9 of the Bill of Rights provides that no court order could restrain debate in Parliament, it remained adamant that reporting of the question by the Guardian, which is subject to common law and statute rather than the Bill of Rights, was restrained under the injunction. Carter-Ruck told us:

    "[…] at the time the interim Orders were made, none of the parties nor the Court had in contemplation the possibility of the matter being raised in the House of Commons. If they had, then the order may well have been formulated (as was done, it appears on the initiative of the Court of Appeal, in the Spycatcher litigation) to allow for such reporting. However, on the wording of the Order as it then stood, it was clear to us that, absent a variation of its terms, it would amount to a breach and therefore a contempt for the Guardian to publish, as it proposed, information about Mr Farrelly's parliamentary question, referring to the existence of the injunction.

    With regard to the Parliamentary Papers Act 1840, the Guardian did not contend that the information which it proposed to publish would be confined to material within the scope of Section 3 of the Act; even had it been, it would still beg the question whether a newspaper which is subject to an injunction can claim to be acting 'bona fide' within the definition of the Act if, rather than seek a variation, it chooses to publish material in breach of the injunction. Likewise, with regard to the Contempt of Court Act 1981, where a court has made an interim Order, restraining a newspaper from publishing material pending a full hearing, the question arises as to whether it may be considered 'conduct intended to impede or prejudice the administration of justice' for that newspaper, absent a variation of the Order, to publish such material."[103]

100. The Trafigura affair is not the first occasion on which the clarity of the existing law has been called into question. In 1999, the Joint Committee on Parliamentary Privilege recommended: "that the statutory protection [afforded to the media by the Parliamentary Papers Act 1840] would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute."[104]

101. The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. In the UK, publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840. They cannot be fettered by a court order. However, the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute.

102. These events involving Trafigura occurred after the conclusion of our oral evidence sessions. In a debate in Westminster Hall on 21 October 2009, Bridget Prentice MP, the Parliamentary Under-Secretary of State for Justice, said that the Ministry of Justice was examining the use of super-injunctions outside the areas of fraud and child protection with the judiciary and lawyers from major newspapers.[105] Notwithstanding the controversy already, Carter-Ruck had also sought to persuade the Speaker of the House of Commons that this debate should not proceed as the case was sub judice under the House's own rules. The Speaker, however, exercised his absolute discretion and allowed the debate. We welcome the Speaker's determination to defend freedom of speech in Parliament, as well as the comments by the Lord Chief Justice on the Trafigura affair, and strongly urge that a way is found to limit the use of super-injunctions as far as is possible and to make clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament. Given the importance of these issues, we hope that a clear statement regarding the way forward is made before the end of this Parliament.

Breach of confidence

103. The Human Rights Act has not superseded the law of confidence. The ECHR is designed to protect individuals, so corporate entities, public authorities and other organisations still rely on the law of confidence to protect private information.

104. Breach of confidence was developed by the courts following the publication of private etchings and pictures, made by Queen Victoria and Prince Albert of their family and friends, and disseminated within a small group.[106] The original components of an action, in which the burden of proof is on the claimant, were that the information in question was secret or confidential, that it was acquired in circumstances giving rise to a duty of confidence; and that it had been or would be used to the detriment of the confider.[107] Over time, however, the definition of confidential information has broadened.

105. The law on breach of confidence was considered by the House of Lords in 1990, in the case of the publication by Sunday newspapers of excerpts from 'Spycatcher', the memoirs of former MI5 employee Peter Wright. The Government of the day sought an injunction restraining publication of the book. In his judgment Lord Goff stated, as a general principle, that:

    "a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others."[108]

106. The law requires the publisher to consider not only where the information has come from but also whether the information itself is in fact private. For instance, the owner of a personal diary dropped in the street and picked up by a passer-by has a reasonable expectation of privacy. However, in the case of 'Spycatcher' the memoirs had been published abroad and were also widely available in the United Kingdom, and Lord Goff noted that a claimant could no longer sue for breach of confidence when the information was so widely disseminated that it could no longer be said to be confidential. The application for an injunction failed.

107. In March 2009, Barclays Bank obtained an injunction requiring the removal from the Guardian's website of seven leaked memoranda showing that Barclays had set up companies to take advantage of tax loopholes. The interim injunction was made over the phone by Mr Justice Ousely at 2.30am on the morning of Tuesday, 17th March, 2009 and was upheld after an immediate, two-day hearing by Mr Justice Blake in the High Court. The Guardian was also barred from publicising their whereabouts on the internet, and the absurdity was heightened when the peer Lord Oakeshott used Parliamentary privilege to reveal the where the sites could be found.[109] In that case, unlike Trafigura, however, Barclays' lawyers did not argue that the media was prevented from reporting the proceedings of Parliament.

108. A publication that is sued for breach of confidence has a defence if it can show that publication of private or confidential information was in the public interest.[110] In such cases the judge must strike a balance between the claimant's right to confidence and the public interest the defendant claims will be served by publication.[111]

109. When he appeared before us, Alan Rusbridger, editor of the Guardian, argued that publication of the memoranda was a clear matter of public interest:

    "Barclays documents that we were sent we put on the web and were hit [with an injunction] [...] at two o'clock in the morning by a judge who told us to take them down. Now, that [publication] was [in our view] clearly in the public interest [...] because, if you look at the small print of the Budget, the Budget has closed down most of the loopholes that Barclays were using, so it was clearly in the public interest that those documents should have been published."[112]

110. In the Barclays case, the judge decided that the bank's right to confidentiality outweighed the Guardian's claim of public interest. Alan Rusbridger told us that he did not feel the need to appeal the case as, despite the fact that the court ruled against the Guardian, the information was in fact freely available on the internet:

    "The documents are out; they were put on to a website called Wikileaks, and I am allowed to tell you that because it was mentioned in Parliament, but I think it is a very interesting case where the law has completely failed to catch up with the internet because there was this arcane discussion in the High Court about whether this was private or not and whether they could contain it in a room, whereas everybody was twittering and linking to it because it was already out there, but the court pretended it was not."[113]

111. It is noteworthy, nonetheless, that the Barclays and Trafigura decisions over breach of confidence contrast with those of Mr Justice Eady's regarding privacy and removal of the Mosley video, although in each the information was widely available on the internet. In the Barclays and Trafigura cases, the 'public interest' arguments also appear to us stronger. It is understandable, therefore, that the media and the public are confused about the approach of different courts with respect to issuing injunctions.

112. The evidence we have heard shows the impact of the internet on the leaking of information has fundamentally altered the dissemination of information, and consequently breaches of confidence.

113. In particular, the Trafigura and Barclays cases raise issues over the use of injunctions for breach of confidence by companies which do not have Article 8 rights to defend, the ease with which they appear to be granted and the consistency of practice in the court system.

6   Right of Privacy Bill [Bill 35 (1960-61)] Back

7   Right of Privacy Bill [Bill 25 (1969-70)]  Back

8   Report of the Committee into Privacy and Related Matters, Cm 1102 Back

9   Review of Press Regulation, Cm 2135 Back

10   Cm 2918 Back

11   Human Rights Act 1998 Back

12   Décision 94-352 du Conseil Constitutionnel, 18 January 1995. Back

13   Article 9 The Civil Code Back

14   See generally J Bell, S Boyron and S Whittaker, Principles of French Law (OUP, 1998), pp 354-391 Back

15   German Federal Constitutional Court, 1999 Back

16   "Berlusconi fury over naked photos", BBC news online, 5 June 2009 Back

17   Human Rights Act 1998, Section 6 (1) Back

18   Ibid., Section 6 (2) Back

19   [2004] UKHL 22 Back

20   [2006] EWCA Civ. 1776 Back

21   [2006] UKHL 44 Back

22   Lord Bingham of Cornhill in Jameel v Wall Street Journal [2006] UKHL 44 at 17 Back

23   Ev 203 Back

24   Cream Holdings v Bannerjee and Others [2004] UKHL 44 Back

25   HC Deb 16 February 1998, col 775 Back

26   HC Deb 2 July 1998, col 541 Back

27   Q 28 Back

28   Q 105 Back

29   Ev 399 Back

30   Q 976 Back

31   Q 970 Back

32   Q 866 Back

33   Napier v Pressdram Ltd. [2009] EWCA Civ 443 Law Gazette, "Michael Napier steps down from the Legal Services Board", 28 May 2009 Back

34   Q 866 Back

35   Q 595 Back

36   Q 736 Back

37   Ev 198 Back

38   Ev 223 Back

39   HC Deb, 15 October 2009, col 1010W Back

40   "F1 Boss has sick Nazi orgy with 5 hookers", News of the World, 30 March 2008 Back

41   Para 5 Mosley v News Group Newspapers [2008] EWHC 1777 (QB) (Mosley (2)). Back

42   Para 36 Mosley v News Group Newspapers [2008] EWHC 687 (QB) (Mosley (1)). Back

43   Para 40 Mosley (2) Back

44   Para 108, Ibid. Back

45   Para 210 Mosley (2) Back

46   Paras 24-25, Ibid. Back

47   Q 782 Back

48   Para 122 Mosley (2) Back

49   Para 170, Ibid. Back

50   Para 81, Ibid. Back

51   Para 82 Mosley (2) Back

52   Para 87, Ibid. Back

53   Para 87, Ibid. Back

54   Para 87, Ibid. Back

55   Para 85, Ibid. Back

56   Para 86, Ibid. Back

57   Q 768 Back

58   Q 788; para 87 Mosley (2) Back

59   Culture, Media and Sport Committee, Fifth Report of Session 2002-03, Privacy and media intrusion, HC 458-I, para 111 Back

60   Culture, Media and Sport Select Committee, Privacy and media intrusion, Replies to the Committee's Fifth Report of Session 2002-03, First Special Report of Session 2003-04, HC 213, para 2.3 Back

61   Culture, Media and Sport Committee, Seventh Report of Session 2006-07, Self-regulation of the press, HC 375 Back

62   Culture, Media and Sport Committee, Fifth Report of Session 2002-03, Privacy and media intrusion, HC 458-I, para 53 Back

63   A & Another v Priory Healthcare, heard in February 2008 Back

64   Q 108 Back

65   Q 317 Back

66   Q 519 Back

67   Q 875 Back

68   Ibid. Back

69   Q 848 Back

70   Ev 12 Back

71   Q 977 Back

72   Paul Dacre's speech to the Society of Editors, Press Gazette, 9 November 2008 Back

73   Q 510 Back

74   Q 904 Back

75   Q 488 Back

76   Q 105 Back

77   Q 1013 Back

78   Q 964 Back

79   Joint Committee on Human Rights, Second Report of Session 2008-2009, Work of the Committee 2007-2008, HL 10/HC 92, para 14 Back

80   Ev 479 Back

81   Ash v McKennitt[2005] EWCA Civ 1714; Browne v Associated Newspapers [2007] EWCA Civ 295; Murray v Big Pictures (UK) Ltd. [2008] EWCA Civ 446 Back

82   Ev 223 Back

83   Q 127 Back

84   Q 128 Back

85   Q 130 Back

86   Q 133 Back

87   Q 812 Back

88   Q 83 Back

89   Q 557 Back

90   Piers Morgan, The Inside: private diaries of a scandalous decade (London, 2005) Back

91   Ev 289-290 Back

92   Qq 851-856 Back

93   Ev 291 Back

94   Q 448 Back

95   Ev 241-242 Back

96   Q 1060 Back

97   Q 458 Back

98   Q 196 Back

99   Q 594 Back

100   Qq 733-735 Back

101   Judiciary of England and Wales, Statement of the Lord Chief Justice, 20 October 2009, Back

102   Ev 461 Back

103   Ev 462 Back

104   Joint Committee on Parliamentary Privilege, First Report of Session 1998-99, HL 43/HC 214 , para 374 Back

105   HC Deb, 21 October 2009, col 294WH Back

106   Prince Albert v Strange [1849] EWHC Ch J20 Back

107   Prince Albert v Strange [1849] EWHC Ch J20, Coco v A N Clark (Engineers) Ltd (1969) Back

108   Attorney-General v Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 Back

109   HL Deb, 26 March 2009, col 773 Back

110   Gartside v. Outram (1857) 26 L.J. Ch. 113; Initial Services Ltd, v. Puttrill [1968] 1 Q.B. 396, Beloff v. Pressdram Ltd. [1973] 1 A.E.R. 241 Back

111   Attorney-General v Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 Back

112   Q 866 Back

113   Q 884 Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2010
Prepared 24 February 2010