Full case report
Browne v Associated Newspapers Ltd
Reference  EWHC 202 (QB);  EMLR 515
Court Queen's Bench Division
Judge Eady J
Date of Judgment 9 Feb 2007
Privacy – Article 8 ECHR – Article 10 ECHR – Business information – Interim injunction – Prior restraint – Section 12 HRA 1998 – Contempt of court
Following the end of a relationship between the claimant (C), a high profile business man and his partner (J), J sought to sell his story to the defendant (D). D put C on notice that it intended to publish an article based on information from J falling into various categories, including the bare fact of the relationship and information regarding C’s business practices. An injunction was granted on 6 January 2007. Prior to a subsequent hearing it emerged that C had lied to the court about the circumstances in which he met J.
In respect of each category of information the following questions should be asked:
(1) Whether a prima facie duty of confidence would arise in respect of each of them by virtue of the fact of the relationship; (2) Was there a reasonable expectation of privacy in relation to the information? (3) If so, was the information to a significant extent in the public domain already? (4) Was there a public interest in the information sufficient to justify publication? (5) If the information is defamatory should Bonnard v Perryman principles apply? (6) Should D’s Art 10 rights be given priority over C’s rights of privacy/confidence? (7) Whether in the light of s12 of the HRA 1998, C was likely in respect of one or all of the categories to succeed in obtaining a permanent injunction at trial; and (8) what effect if any should C’s lie have on the application?
The injunction would remain in force but on a more limited basis. It was not helpful to concentrate on whether or not such information was “business” or “personal”: the question was whether there was a reasonable expectation of privacy. On the facts, the information that C had used company resources to set J up in business was information of the type which the shareholders and board members had a right to make a judgment on. Conversely, there was a reasonable expectation of privacy in relation to private conversations which took place in a domestic context between C and J about C’s potential business strategy and C’s relationship with colleagues. The bare fact of the relationship was not subject to a reasonable expectation of privacy. The lie did not require the Court to discharge the injunction. It was sufficient penalty that the wrongdoing was identified in the judgment.
The judgment reiterates that the context in which the alleged private/confidential information is obtained is as important as the subject matter of the information itself. Conversations about business taking place in a domestic context will be protected subject to the potentially overriding effect of public interest in publication.
Schillings for the Claimant; RPC for the Defendant
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