Reference:  EWCA Civ 1169;  EMLR 1
Court: Court of Appeal
Judge: Lord Phillips MR, Waller & Carnwarth LJJ
Date of judgment: 31 Jul 2003
Summary: Privacy - Confidence - Injunction - Consent - European Convention on Human Rights - Article 10 - Freedom of Expression - Article 8 - Respect for private life - public domain
Instructing Solicitors: Breakwells for the Claimant; Freshfields for the Defendant
The Claimant “D”, a musician, applied for an injunction to prevent the publication of various tape recorded conversations. “L”, the Defendant, who had lived with the D for a number of years, had recorded some of their conversations at a period when their relationship was breaking down. D had not known what L had done. Part of the recorded conversations referred to D’s sexual proclivities. Thereafter, proceedings between L and D commenced in relation to L’s claim for an interest in D’s home. Parts of the information relating to D’s sexual proclivities had been given in open court. D applied for an injunction to restrain the use of the tapes. The Judge refused to grant an injunction and D appealed.
Whether an injunction should be granted.
(1) The fact that D and L had been involved in a settled relationship and the recordings had been made covertly strongly pointed towards the information being private and confidential. D’s Article 8 rights were engaged. However, L as party to the relationship also had rights of freedom of expression. As such, a balance had to be carried out. (2) The circumstances in which the tape came into existence imposed an equitable duty on L not to use the information for any purpose other than that for which it was obtained. However, some of the information was already in the public domain. Further, L had neither published nor threatened to publish details from the tape. (3) The judge had taken all these matters into account and had been correct not to grant an injunction.
The case is made unnecessarily difficult to understand by the coyness of the judgments of the Court of Appeal. Whilst recording that most of the information was already in the public domain, the Court decided to sanitise the judgment of all of these details. However, the point seems relatively straightforward: yes confidential, but no threat to republish and much already in the public domain. The case contains a potentially important and difficult dictum of Waller LJ, suggesting that, post Douglas v Hello, the confidentiality may attach to the substratum on which the information is recorded, rather than to the information itself.