Reference:  EWHC 3083 (QB);  EMLR 312;  2 FLR 301; The Times 5 Dec 2006
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 4 Dec 2006
Summary: Privacy - Confidence - Injunctions - Article 8 - Article 10 - Freedom of Expression - Harassment
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Instructing Solicitors: Henri Brandman & Co for the Claimant; Jackson & Canter for the Defendant
CC had an adulterous relationship with N, the wife of AB. AB discovered this and obtained email and other correspondence between CC and N. CC’s wife learned of the affair and suffered stress and anxiety, making threats of suicide. Newspaper editors held back from publishing. CC sought to rebuild his marriage. AB threatened and began internet publication. CC sought an interim injunction. AB admitted his motives were revenge and financial profit. He did not oppose interim restraint in respect of the correspondence and its contents but resisted any prohibition on disclosure of the fact of the relationship, and of details obtained by AB from N and sources other than the correspondence.
(1) Is there a principle of law that a party to an adulterous relationship can never obtain injunctive relief against the wronged party preventing him from disclosing the relationship? (2) Was the information capable of protection? (3) If so, was it necessary and proportionate to interfere with AB’s freedom of expression in order to protect the information?
(1) There was no such principle of law as that contended for; this would be a generality, inconsistent with the need to apply an intense focus to the particular facts of an individual case. (2) The Article 8 rights of CC were engaged. So were those of N who did not, on the available evidence, wish publication to occur. The court could not disregard the impact of publication on CC’s family life, or on the Art 2, 3 and 8 rights of his wife. (3) The court should beware of applying personal moral views. The argument for AB, that the court should “vindicate” the institution of marriage, did not reflect AB’s own position. He wished to expose and humiliate not only CC but also his own wife. That could frustrate rebuilding CC’s marriage and damage his wife’s fragile mental state. CC had not misled the public or moralised publicly. There was no genuine public interest in disclosure. It was necessary to prevent AB from going directly or indirectly to the media or the internet with the story.
This case provides another practical example of the difference between the law of confidence and the developing law of privacy. Recognition that the fact (and details) of a adulterous relationship might be known (or legitimately be told) to a number of limited people might undermine a claim in confidence, yet it does not defeat a privacy claim. The Judge’s audit of the value of free speech – c.f. Lady Hale in Campbell v MGN – does not bode well for tabloid intrusions into privacy.