Reference:  EWHC 1651 (QB);  EMLR 851;  28(8) IPD 28060
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 13 Jul 2005
Summary: Privacy - Confidence - Injunctions - Likelihood of Success - Claimant having put similar information into the public domain - 'zone of privacy'
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David Sherborne (Defendant)
Instructing Solicitors: Schillings for the Claimant; Mishcon de Reya for the First Defendant; Reynolds Porter Chamberlain for the Second & Third Defendants
A sought an injunction against his former wife B, as well as C and D, respectively the UK and US publishers of a lifestyle magazine to which she had given an interview about her business over confidential or private information she had allegedly provided to the magazine in relation to their relationship. A had himself previously placed into the public domain personal information relating to himself, B and their children about a number of subject matters, including his past drug habit and rehabilitation. Although drafted in very wide terms, A was effectively seeking to restrain any publication of further details about these subjects; C and D stated that they did not intend to publish any information outside of these subjects.
Whether a claimant who had already disclosed personal information about himself in the press could still seek protection for his privacy in relation to the publication of further or similar details relating to the same subject matters.
Refusing the injunction: in assessing whether the claimant had a reasonable expectation of privacy, the Claimant’s own conduct was an important consideration. If he had voluntarily put personal information into the public domain, this would be a highly relevant factor. The defendants were intending only to publish information within the same ‘zone’ as that already published by the claimant himself. It was too unrealistic to confine coverage by the press to the precise details in the original publication. On the evidence, the claimant had failed to establish that the defendants were proposing to publish anything in respect of which he had a reasonable and continuing expectation of privacy or that the criteria in Cream Holdings had been satisfied.
This case has to be contrasted with the later decision of McKennitt v Ash. In that case the claimant successfully sued in relation to an invasion of privacy despite the fact that the claimant had already released similar material into the public domain. McKennitt, of course, was a decision after full trial, whereas this case concerned an interim injunction. The Claimant had difficulty clearing the Cream Holdings threshold given the previous publication of private information and lack of knowledge of what was intended to be published.