WB v H Bauer Publishing Ltd
Reference:  EMLR 145
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 14 Jun 2001
Summary: Breach of confidence – invasion of privacy – striking out
Instructing Solicitors: Bindman & Partners for the Claimant; Denton Wilde Sapte for the Defendant
The claimant had been charged with rape but acquitted when the trial judge ruled that DNA evidence against him had been retained unlawfully by the police. The Attorney General appealed against the ruling by way a reference on a point of law. Pursuant to the Criminal Appeal (References of Points of Law) Rules 1973 the House of Lords made an order prohibiting the claimant from being identified. The Times subsequently published two articles about the case which named the claimant. These reports were picked up by the defendant which also published an article in its weekly magazine in which the claimant’s identity was disclosed. The defendant’s evidence was that it was not aware of the House of Lords’ order.
Whether the claimant had an arguable claim for breach of confidence or invasion of privacy.
The claim was struck out because the defendant had obtained the information concerning the claimant in circumstances which did not import an obligation of confidence, namely by reading it in another newspaper. For the same reason, there was no claim for invasion of privacy. Had there been a valid cause of action, the defendant had no public interest defence; nor could it be said that information which had appeared in a national newspaper was necessarily in the public domain.
This decision does little to advance the protection afforded to privacy in English law following the adoption of the Human Rights Act 1998. The claimant clearly had a right to anonymity by virtue of the 1973 Rules and the House of Lords Order. Where this is inadvertently breached, it would appear that the court is not willing to impose any liability even if the breach amounted to a contempt of court. The claimant would have had a strong case for a breach of his right to presumption of innocence under Article 6(2) ECHR and/or Article 8 ECHR at the European Court of Human Rights because of the failure of the UK authorities to publicise and enforce the House of Lords Order. The finding that publication of such information in a national newspaper does not necessarily put it into the public domain is significant, however, in recognising the difference between confidential and private information.