McKennitt v Ash (CA)

Reference: [2006] EWCA Civ 1714; [2008] QB 73; [2007] 3 WLR 194; [2007] EMLR 113; The Times, 20 December 2006

Court: Court of Appeal

Judge: Buxton, Latham & Longmore LLJ

Date of judgment: 14 Dec 2006

Summary: Privacy - Breach of confidence - Article 8 - Article 10 - Shared confidence - Public domain - Public interest - False private information.

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Appearances: Desmond Browne QC - Leading Counsel (Respondent)  David Sherborne (Respondent) 

Instructing Solicitors: David Price for the Appellants, Carter-Ruck for the Respondents

Facts

A had written a book about her former friend and employer, M, a Canadian folk singer. Prior to widespread publication M successfully obtained an injunction preventing publication of some of the information contained in the book on the ground that A had acted in breach of confidence. A appealed.

Issue

(1) Whether the information was confidential;

(2) Whether A’s right to tell her own story outweighed M’s Art 8 right;

(3) Whether the information was already in the public domain;

(4) Whether, if information is false, a claimant can bring a claim for breach of confidence.

Held

Dismissing the appeal:

(1) The information was to be protected as confidential, since (a) it was sufficiently private to engage Art. 8; and (b) in the circumstances A’s right of freedom of expression under Art. 10 had to yield to the Art. 8 rights of M;

(2) A did not have the right she claimed to tell her own story. The story was shared only in the sense that M had admitted A to her confidence. A had no story of her own to tell. A v B was not a binding authority on the balance to be struck between Arts. 8 & 10, which was best illuminated by von Hannover;

(3) The information was not already in the public domain;

(4) Where private information engaged Art. 8, the question was whether the information was private, not whether it was true or false.

Comment

This widely anticipated judgment delivers a potential body blow to kiss and tell stories with A v B being sidelined in favour of Strasbourg jurisprudence. The weight given to von Hannover seriously undermines the media argument that its effect is limited to cases of press harassment. Both Buxton and Longmore LJ expressly stated that a defendant cannot deprive a claimant of Art 8 protection by showing the material is untrue.