McKennitt v Ash (QBD)

Reference: [2005] EWHC 3003 (QB); [2006] EMLR 178

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 21 Dec 2005

Summary: Confidential information - Privacy - Extent to which material in public domain - Public interest defence

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

Instructing Solicitors: Carter-Ruck for the Claimant; Defendant in person

Facts

The Claimants were a Canadian folk musician (C) and her corporate recording companies. The Claimants issued proceedings against a former friend and personal assistant of C over the contents of a book entitled “Travels with Loreena McKennitt: My Life as a Friend”. The Claimant maintained that despite her professional success, she had always sought to keep her personal and business life private, save for the controlled release of personal information to promote a charitable cause. The Claimant sought a declaration that by publishing identified information in the book the defendants had acted in breach of confidence. Although there had already been limited publication of book, C also sought to restrain various categories of ‘confidential information’ (as well as specific passages) in the book, as opposed to its entire contents. The Court had ordered a speedy trial.

Issue

The five main categories of information sought to be protected were: (i) C’s personal relationships; (ii) her personal feelings and grief relating to the death of C’s former fiancé; (iii) health & diet; (iv) C’s emotional vulnerability and (v) a property dispute with D and D’s partner. D relied on defences of public domain and public interest, as well as a claim that this was an expression of her personal right to freedom of speech.

Held

Finding for C on the majority of passages in the book complained of, Held: the court needed to consider each passage separately to decide (1) whether the threshold test of reasonable expectation of privacy had been passed and (2) whether any ‘limiting factor’ applied, such as public domain or public interest, including whether information should escape protection as being banal, trivial or anodyne. The principles in Von Hannover are of wider application than harassment by the tabloid press. In matters of personal information, the courts would be less ready to assume protection had been lost forever on the basis that it had entered the public domain. The relevant test is whether the information in question is so generally accessible that in all the circumstances it cannot be regarded as confidential. A high degree of misbehaviour is necessary on the part of the Claimant to engage a defence of public interest in ‘exposure of misconduct cases’ rather than mere peccadillos of a celebrity.

Comment

This is an important decision as it provides guidance on several previously unexplored issues in the law of privacy: (a) the Court should be slow to allow a defence of public domain to succeed in relation to the disclosure of personal information; (b) a reasonable expectation of privacy may arise in relation to false allegations, untrue, distorted or misleading information; (c) the formulaic nature of claims for public interest must be carefully analysed – Woodward v Hutchins [1977] 1 WLR 760 was impliedly disapproved. Finally, the Court recognised that the right to privacy has a social dimension; those who kiss and tell cannot justify revealing the private life of others by claiming they are exercising their own right to freedom of expression.