PERSONAL SECRETS

Stevens v Avery [1988] Ch 449
Facts: S was a woman and her husband was accused of murdering another woman. The first defendant was a close friend of the plaintiff; the plaintiff disclosed to the 1st defendant that she had been engaged in a lesbian relationship with the murdered woman. This was unknown to the police. The plaintiff told the 1st def. that she was telling her this in confidence; whereby the 1st def. went to the Sun newspaper and told her the story. The plaintiff sought to restrain publication of the disclosures.

One of the issues was whether the information was confidential; imparted in situations that gave rise to a relationship of confidence; and whether there was detriment through the disclosure. One argument raised was that equity shouldn’t be relied upon to protect confidential information in relation to grossly immoral conduct and an adulterous lesbian affair was grossly immoral conduct so that there was no air of confidence.

Found: the Vice-Chancellor accepted that this evidence could attract the necessary quality of confidence; wasn’t such that public policy suggested it should be unprotected. Also, the relationship between S and the deceased was more than a casual affair so that the information could be considered confidential. There was found to be an obligation of confidence and there was detriment suffered. A cause of action for breach of confidence was found to be made out

Barrymore v News Group Newspapers Ltd [1997] FSR 600
Facts: B was a TV presenter on UK TV and was happily married. He was a closet homosexual and started seeing a man called Paul. The relationship ended badly and P was employed as his personal assistant and B fired P. P, who was put out, went to the Sun newspaper and sold them the love letters written between them and gave an interview about B’s sexual orientation. The Sun called B for a response and alerted him to the possibility of a publication and B sought an injunction to restrain publication. The issue in this case was whether there had been a confidential relationship between the parties

Jacob J: accepted that there was something more than a casual affair, although this was considered the ‘outer extremities’ of the relationships that would be considered confidential. Therefore P should have realised that the information was received in circumstances of confidence and it was clearly to the detriment of B to disclose the information. After the letters, there was a contract signed between B and P under which he agreed not to disclose personal information; the judge found that didn’t need to rely on contractual terms and equity would recognise a confidential relationship.

A v B (a company) [2003] QB 195
Facts: A was a premier league footballer who was caught sleeping with a flight attendant and his children’s nanny unknown to his wife. They were both offered ₤30,000 to tell their stories to a newspaper. The newspaper sought a response from A, who sought an injunction and suppression orders

Found: at first instance, both were awarded and the newspaper appealed. From Barrymore, the decision was made before the Human Rights Act where courts must consider the impact of the common law and equity of various rights which are enshrined in the Human Rights charter. In this case, the UKCA found that the right of the flight attendant and nanny to freedom of expression prevailed over the right of the footballer to privacy.

Reasons for judgment: the nature of the relationship was a casual one; it wasn’t a marital or de facto relationship which didn’t give rise to an obligation of confidence. In addition, there was recognised a notion of the public interest and the media should be allowed to write for the Public Interest and also because footballers serve as role models and are in the prurient Public Interest.

Hitchcock v TCN Channel 9 (2000) Aust Torts Reports 81-550
-    Hitchcock accused Page of stealing her car, cash and underwear. Page then pursues an AVO against Hitchcock – which was not unusual given her past (she had done it to a previous employer). Hitchcock paid her 23K and under the agreement placed her under a duty of confidence in a confidentiality agreement.
-    In March 2000 the SMH got hold of the story and threatened to publish the story. They then got in contact with Hitchcock [under DAs22(2A)].
-    She then sought an injunction but the only interlocutory injunction the judge was prepared to give was for those matters that specifically related to the AVO proceedings between them.
        Equitable restraint for wrongful disclosure:
-    The court looked to the test in Coco v AN Clark but did not think that the plaintiffs had conceded that Page’s testimony was not of sufficient gravity. Austin J did allow that the agreement would prevent her from disclosing information about her employment and court actions but said that it did not follow that the action for breach of confidence from the signed contract extended to domestic matters and secrets.
-    The court in this instance did not find that the Defendant was under a duty of confidence and the judge makes a distinction between a live-in butler and an employee – so the confidence would be related to that information that the employment involved. So she was not under a ‘special duty of confidentiality, and the mere employer/nanny relationship is not sufficient to protect them from disclosure’ (65 and 67 - 80) for those matters that she revealed about her employ within the household.
-    Note: After this, Hitchcock appealed and was successful in maintaining that she was employed under a duty of confidence: she won on the basis that the there was an implied duty of confidence – Spieglman CJ and Mason J, applying the (first, discussed above) second and third limbs of the test in Coco v AN Clark: ‘that it must have been imparted in circumstances importing an obligation of confidence’.

Campbell v MGN Ltd [2004] 2 AC 457
[Post Douglas v Hello!]
-    Naomi Campbell had disclosed her issues with anger and alcoholism  but not her battle with narcotics
-    Daily mirror got this information – got photos of her leaving an Narcotics Anonymous meeting and a publication was soon published
-    C instituted proceedings for BOC to the invasion of privacy
-    The House of Lords, by 3-2, found in favour of the supermodel who sought damages for the publication by the Daily Mirror of articles and photographs concerning the fact that she was receiving treatment by Narcotics Anonymous for her drug addiction.
-    The model had publicly denied that she was addicted to drugs, and the Court of Appeal had held that by mendaciously asserting to the media that she did not take drugs, she had rendered it legitimate for the media to put the record straight. The House of Lords nevertheless held that she was entitled to compensation.
-    Awarded $8000 pounds for emotional stress
-    Issue: whether there was a cause of action for the invasion of privacy and BOC?
-    HOL: personal privacy should be protected through BOC.
-    Lord Nicholls expressed a strong preference for a test based on whether in regard to the disclosed facts ‘the person in question had a reasonable expectation of privacy.’ He rejected Gleeson CJ’s formulation in Lenah Game Meats that asks whether the disclosure ‘would be highly offensive to a reasonable person.’ This test, according to Lord Nicholls, is stricter than his proposed ‘reasonable expectation’ test.
-    Personal information about her health is highly confidential and it
is up to C to disclose this information and she has the ultimate say on what she discloses
-    The premise of the NA group is the anonymity of the group – hence public knowledge is a breach of Confidence
-    The publication destroyed her anonymity- her presence in her narcotics group is now common knowledge
-    It is therefore, unknown as to whether the courts would favour this test in Australia as the ‘highly offensive’ test goes ‘more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.’
-    Yet the court added that this test of reasonability once the information is identified as ‘private’ in this way, the court must balance the claimant's interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.’

Giller v Procopets [2004] VSC 113
P had been in de facto relationship and recorded a sex tape. Tried to get damages but did not bring evidence of psychiatric illness or damage. Examined the tests in Moorgate tobacco: “obtaining and using to the detriment” It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. The court also said that the plaintiff had to establish the tests in Talbot v General TV Corporation to show:
a.    A confidential relationship
b.    The portrayal of confidential info
c.    An unauthorised use
d.    The suffered injury and entitlement to damages drawing from that
The court points out [160] that damages are a common law remedy and breach of confidence is Equity: you can get restitution or an account of profits but here there were no profits generated by the display of those videos.
The court then [161] said that apart from the exceptions in defamation, trespass to land or person, you cannot get mental distress damages for common law. Where you have physical injury you may get mental distress that is parasitic to the primary physical harm: so you need some sort of negligence occasioning nervous shock: Wilkinson v Downton (bad broken leg joke).
Note the three part test: (i) that the defendant wilfully did an act or made a threat in relation to the plaintiff (ii) at the time the act was done it was calculated to cause harm to the plaintiff (iii) as a result of the act the plaintiff suffered physical or mental injury – that has to be more than simply ‘annoyance and distress’.
Traditionally breach of confidence in Equity cannot be used to get damages and the courts would be loathe to open the floodgates in this case; the court said at 186 that ‘to allow such a cause of action may result in a flood of litigation’.

VISUAL IMAGES

Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804
**The taking and publication of photographs using invasive forms of photography can be treated as a form of breach of confidence**
While Mr Hellewell was taken into custody he was photographed under the Police and Criminal Evidence Act. Later on, local shop owners had arrangements with the Police to give them photos of convicted criminals.
-    There was recognition of visual images and that photos can constitute confidential information. A breach of confidence can be an unauthorised use and disclosure of that confidential information. “If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgement, as surely amount to a breach of confidence...
-    “In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is of course, elementary that, in all such cases, a defence based on the public interest would be available.”Constructive relationship: that they were put on notice that it was confidential – that it was intended to be private – that there was an expectation of privacy. The Police had obtained the photo under statutory powers but limited to using them for statutory proceedings – and that preventing crime was pursuant to that statutory aim.

Douglas v Hello! Ltd [2003] EWHC 786

-    Catherine Zeta Jones and Michael Douglas wanted to sell the rights of their wedding and entered into a contract with OK! magazine
-    D had security imposed on the wedding in terms taking photographs and people entering the wedding
-    Paparazzi took photos – tried to sell them to some magazine in Spain
-    Photos were published by Hello! to pre-empt the official photos
-    Courts: BOC possible due to breach of personal privacy
-    D took steps to restrict who could take photographs, as was their right
-    Trial judge awarded damages of  3750 pounds though they wanted 500,000
-    Also awarded 7000 pounds in relation to the profits lost due to sale to OK! magazine
-    OK! magazine was awarded greater cost as they were the greater loser financially
-    English CoA – in England there are 2 causes of action of BOC:
o    1. Proprietary sense action – traditional analysis  - to protect commercial confidences
o    2. BOC in relation to breach of personal privacy – the test here is rather the offensive conduct test in Lenah Game Meats – protects personal confidences
-    Courts found that the trial judge was correct in terms of OK! magazine in they were the biggest loser
-    Also found that the Trial Judge had erred – Trial Judge had accepted that the wedding was a private wedding and that they had entitlement to control elements of it
-    Trial Judge was correct that the photos were an invasion of privacy
-    BUT erred in the sense that they had allowed both Commercial loss and Private lose – commercial being loss of contract and private being distress
-    You cannot have both breaches of confidence at the same time i.e. either your privacy has been invaded or that your commercial prospects have diminished
-    Commercial Interests of Images and Privacy: the Court accepted that the Douglas’s’ privacy are commercial interests and are essentially, trade secrets. The value of that depends on the control of published pictures of their commercial interests.
-    Commercial Loss: the loss to OK! Was obvious and that it affected the contract between OK! And the Douglas’s: both by being forced to re-arrange their plans for photo approvals, incurring extra expenses and loss of syndication receipts.
-    Constructive Notice: the Court said that the defendant’s consciences were tainted [equitable principle of clean hands] and that they did have constructive notice and that the security measures should have made these patently obvious: ‘these Defendants kept their eyese shut lest they might see what they undeniably knew would have become apparent to them. Breach of confidence apart, had the Hello! Defendants opened their eyes they would have seen that the taking of the photographs which they bought had involved at least a trespass.’
-    Control: the court noted that the Douglas’s wanted to have control and that control was not an improper objective of the law of confidence: ‘that certain information should not be published or that copies of certain documents should be destroyed or returned or that abuse of a trade secret should be barred to a person are all both familiar aspects of the law of confidentiality and aspects of control.’ The court said that control was ‘another factor in the overall balance between confidence and freedom of expression.’

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