Law of confidence can trump libel law, rules High Court

Out-Law News | 22 Oct 2009 | 4:07 pm | 3 min. read

The High Court has upheld a famous person's rights under the law of confidence over someone else's right to reveal his activity with a prostitute under defamation law. The Court has granted an interim injunction which will keep the man's identity a secret.

The man is described as someone "with some public reputation" in the Court's ruling, which says that "about ten years ago, he had two or three sexual encounters for payment. These took place at his home".

When the woman approached him two years later and allegedly threatened to reveal details of their encounters unless she was paid, they made a confidential arrangement. It said: "this arrangement is made in confidence and neither this letter nor its terms should be disclosed by you to anybody else".

In August a person got in touch with the man's agent threatening to publish details of the encounters. The man then sought an order to stop the material being published. The Court has granted an interim order to that effect.

The man's lawyers argued in Court that the details of the encounters were private, and that the agreement was protected by the law of confidence. It would be a breach of that law for the information to be published, he argued.

Mr Justice Tugendhat in his ruling said that though the case was brought on the laws of privacy and confidentiality, it could involve the laws of defamation.

"Although it is not known what it is that the defendant is threatening to publish, the likelihood is that, whatever it is, it may well arguably be defamatory. And, on the basis of the information provided to me by the applicant, it may also be true," he said.

"I am concerned as to whether the claim in this case is properly to be regarded as a claim to protect the applicant's privacy, or whether it is a claim brought to protect his reputation," said the judge. "The established law in relation to claims in defamation is that no interlocutory injunction will be granted where the defendant is proposing to publish material that may be defamatory but which the defendant is alleging to be true."

Mr Justice Tugendhat was left with the choice to allow the injunction under the laws of privacy and confidentiality or to refuse to allow it under the laws of defamation. He chose to allow the temporary injunction and said that if the un-named defendant wished to publish they would have to take further court action.

"It will be for the defendant and any other party who may wish to apply, if so advised, for the matter to be brought back before the court," he said.

The principle that injunctions should not be served to keep secret potentially defamatory information which the person making the allegation believes to be true was established in a case called Bonnard v. Perryman, the judge said. He said that the courts will have to resolve the conflict between that principle and the law of confidentiality and the right, guaranteed in Article 8 of the European Convention on Human Rights, to privacy.

"At some point, the court will have to grapple again with the question of where the principle of Bonnard v. Perryman applies, and where it does not, when an application is made on the basis of privacy, but it is an application to restrain publication of material which is arguably defamatory," Mr Justice Tugendhat said. "The court will have to decide how the rule in Bonnard v. Perryman is to be applied in the light of such authorities as are then available as to the status of reputation as an Article 8 right and, if it is an Article 8 right, how the exercise of the ultimate balancing test … is to be applied on an interlocutory application."

Not all sexual activity is protected by privacy laws. The court heard that a number of previous cases found that injunctions should not be granted to keep secret all information about a person's sexual practices.

The judge quoted a ruling in a case involving television presenter Jamie Theakston and his visit to a brothel.

"Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away," ruled the judge in that case.

The man's lawyer said that because the encounters took place at his home and because he and the woman had made a written agreement to keep them secret it should be protected as private.