Article

Privacy and confidence

The publisher of The Mail on Sunday has lost its appeal against a decision to award the Prince of Wales summary judgment for breach of confidence and copyright infringement in respect of his Hong Kong journal.

Background

To be protected as confidential information, information must (i) have the necessary quality of confidence and (ii) be disclosed in circumstances importing an obligation of confidence. Sometimes, the quality of confidence will be easy to establish, such as a trade secret, but other times it may not, such as lists of customers which can be put together relatively easily from publicly available information. Information in, or which differs only slightly from information in, the public domain will not have the necessary quality of confidence. Again, whether or not information has been disclosed in confidence is not always easy to establish since an obligation of confidence can be implied from particular facts. However, it is easier to establish where there is a contractual obligation.

Writing “confidential” on a list of documents, while not enough by itself to import the quality of confidence, will evidence (at least in part) the obligation of confidence. Since the incorporation of the European Convention on Human Rights into UK law, the courts have also had to consider the provisions of Articles 8 (the right to respect for private and family life) and 10 (freedom of expression) when considering breach of confidence cases. Article 8 includes an individual’s right to respect for his correspondence and Article 10 is expressly subject to “such formalities, conditions etc as are prescribed by law…for preventing the disclosure of information received in confidence.”

Facts

Prince Charles brought an action for copyright infringement and breach of confidence against Associated Newspapers in respect of articles and editorial comment, which appeared in The Mail on Sunday. The articles contained extracts from a typed up copy of the Prince of Wales’ journal about his visit to Hong Kong when it was being formally handed over to The Republic of China in 1997. Associated Newspapers had received a copy of the journal indirectly from an ex-employee of the Prince, Ms Goodall. As an employee, Ms Goodall had been subject to express contractual obligations of confidentiality towards the Prince of Wales. The High Court awarded summary judgment in favour of the Prince. Associated Newspapers appealed to the Court of Appeal.

The Court of Appeal upheld the High Court’s order for summary judgment in respect of the claims for breach of confidence and copyright. Lord Phillips, giving the leading judgment, explained that the English courts had developed a law of privacy that protected the right to private and family life, home and correspondence, pursuant to Article 8. This had extended the law of confidentiality to protect private information even where there was no breach of a confidential relationship. In such cases, the issue to consider was whether the information was of a private nature and whether Article 10 (freedom of expression) should be invoked notwithstanding that right. This would involve weighing the nature and consequences of the breach of privacy against the public interest in disclosing the private information. Where there was a breach of a confidential relationship, the issue was whether the information was confidential and whether, in all the circumstances, it was in the public interest that the duty of confidence be breached.

The court held that the information contained in the journal was private information and that public disclosure of that information infringed the Prince’s Article 8 rights. The disclosure of such information could be extremely intrusive, particularly as Prince Charles was an important public figure and the public took an interest in him regardless of how trivial the information. Furthermore, the court did not consider that the journal significantly contributed to matters argued by Associated Newspapers to be of public interest. Prince Charles’ Article 8 right to privacy thus outweighed Associated Newspapers’ freedom of expression rights - even if Ms Goodall’s breach of confidence was ignored. However if consideration was given to Ms Goodall’s breach of confidence, Prince Charles’ case was overwhelming. In this context, Lord Phillips explained that there was an important public interest in upholding obligations of confidentiality since those who engaged employees, or who entered into other relationships of confidentiality, needed to be able to be confident that they could disclose confidential information without risk of wider disclosure.

Comment

This case provides an insight into the balancing act that has to be carried out in breach of confidence cases, particularly where there is no breach of a confidential relationship. It also provides a useful reminder of the law of confidentiality and the circumstances in which an obligation of confidence can arise. Furthermore by establishing the test in relation to a breach of a confidential relationship that the issue is not whether disclosure is in the public interest, but rather whether upholding a breach of that confidential relationship would be in the public interest, the Court of Appeal has set a high threshold for the media to overcome when relying on their right to freedom of expression under Article 10.

For further enquiries please contact Genevieve Mead on 01892 701308 or email genevieve.mead@
ts-p.co.uk.

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