Douglas v News Group Newspapers

C is the daughter of Susanne Hinte. Ms Hinte came to public attention in January 2016 when she sent a damaged lottery ticket to Camelot to see if she had won. It transpired that she was not in fact the winner. Ms Hinte’s conduct was widely reported. D publishes The Sun newspaper and in April 2016 published versions of an article about Ms Hinte in print and online. The articles contained a topless photograph of Ms Hinte. A former friend had provided the photograph and other sexually explicit images to D in exchange for a fee. (The former friend was later prosecuted and sentenced to a term of imprisonment, suspended for 12 months for the disclosure.)

Ms Hinte brought a claim for misuse of private information, breach of confidence, breach of the Data Protection Act 1998 and infringement of copyright in respect of the article and photograph.

Ms Hinte died shortly after proceedings were issued by the Court. C, on behalf of Ms Hinte’s Estate, continued the proceedings. The parties agreed terms of settlement in March 2018. C applied for a statement in open court. D did not oppose the application but did oppose the inclusion of two paragraphs.

1.  Should a statement in open court be allowed in the circumstances?

2.  Should the paragraphs disputed by D be included?

3.  Who should bear the costs of the application?

1.  A statement in open court should be allowed

Guidance on this point could be derived from two decided cases in the European Court of Human Rights. Putistin v Ukraine Application no 16882/03 at [33] accepted that the reputation of a deceased member of a person’s family may in some circumstances affect that person’s private life and identity and thus come within the scope of Article 8. Dzhugashivili v Russia Application No. 41123/10 also accepted that the applicant’s reputation, as part and parcel of his family’s reputation, fell within Article 8. These cases provided some guidance when determining whether a statement should be permitted to be read in open court in respect of a breach of confidence/misuse of private information claim relating to a person who is deceased.

In the circumstances, such a statement was appropriate. Evidence had been provided showing that Ms Hinte suffered enormous embarrassment and distress as a result of the publications, as did Ms Hinte’s son. Ms Hinte told C’s solicitor before her death that the type of vindication provided by the reading of a statement in open court was very important. For this reason C also feels strongly that justice will only be achieved for Ms Hinte’s estate by the reading of a statement in open court.

2.  The paragraphs should be removed.

The first disputed paragraph states that Ms Hinte was alerted for the first time to the articles on 3 April 2016. D stated that this was not part of the pleaded case and was in any event inaccurate as Ms Hinte made a statement via her PR agent before publication. C suggested that this could be amended by the addition of Ms Hinte being alerted for the first time to the ‘published’ articles.

Inclusion of the first disputed paragraph would pass the threshold of “significant unfairness” (per Mann J in Richard v (1) BBC (2) Chief Constable of South Yorkshire Police [2017] EWHC 1648 (Ch) at [11(iv)] and should be deleted as it is likely to be misleading.

The second disputed paragraph stated that D “has not filed any defence to this action”. C submitted that this reflects that D has not filed a defence. D submitted that the paragraph is misleading as it gives the impression D failed or otherwise could not file any defence to the action.

In context, the second disputed paragraph would be misleading and significantly unfair to the Defendant. It should be deleted.

3.  There should be no order for costs.

C applied for D to pay C’s costs. D submitted there should be “no order for costs” on the basis that the application was not resisted in substance, but only requested two changes. As D successfully resisted the inclusion of those paragraph “no order for costs” is appropriate.

This is an unusual example of a statement in open court in respect of a deceased individual by their estate. Of the two ECHR cases cited by Senior Master Fontaine, both of which had related to defamation cases (and accepted the implications of a ‘family right’ to Article 8 in respect of a relative’s reputation), neither had succeeded on the facts.