As a ‘famous sportsman’ has his right to privacy upheld, the Court of Appeal confirm a right of privacy in Niema Ash v Loreena McKennitt and Prince Charles keeps his journals private

January 2007


Both these cases involved Mr Justice Eady and in the first case, simply known as CC v AB, he had to decide whether or not to allow injunctive relief to prevent a certain ‘AB’ spilling the beans about sportsman CC’s adulterous affair with AB’s wife (N). Once AB knew about the fling he decided to go public both for revenge on and of course to get some money. CC sued for interim injunctive relief to stop AB spilling the beans on the basis that any such communication would either be a breach of confidence or harassment under the Protection from Harassment Act 1997 (AB had allegedly made a number of calls to CC and this matter was not resisted). The article 8 right to privacy under the Human Rights Act 1998 was also argued (against the context of the Article 10 rights to a freedom of expression). AB argued that an adulterer (ie CC) could never prevent the release of information about an adulterous affair. Eady J did not agree with this final point and said that there could be no blanket rule that an adulterer could never restrain the publication of matters relating to his adulterous relationship and even an adulterous relationship might attract a legitimate expectation of privacy. That being so, there was no rule which automatically exempted a ‘wronged’ husband from being gagged – even though his right to free speech might, on the right facts, be given priority. Both CC’s and N’s privacy rights under ECHR Article 8 had to be taken into account. This being so, on the facts of the case an injunction restraining AB from communicating, directly or indirectly, with the media or on the internet in relation to the subject of the former relationship with N was appropriate (effective immediately until review in February 2007). CC v AB [2006] EWHC 3083 (QB)

McKinnit involves folk singer Loreena McKinnit whose new age celtic music has sold more than 13 million albums worldwide. The case concerns the publication in 2005 of a book “Travels with Loreena McKennitt: My life as a Friend” written by Ash, who was formerly a close friend of Ms McKennitt. Ash had also worked for McKinnit. The Court of Appeal dismissed an appeal against the decision of Mr Justice Eady that Loreena McKennitt’s former friend Niema Ash could not make public details of privacy-conscious McKennitt’s personal life in a book written by Ash. Eady J had awarded £5000 in damages and restricted the publication of certain sections of the book. Giving the lead judgment, Lord Justices Buxton (with whom Latham and Longmore LJJ concurred) carefully reviewed and complimented Eady J’s approach towards the balance between Ash’s freedom to tell her story, the public’s interest in knowing it and McKennitt’s entitlement to keep a major part of her private life free from public scrutiny. The nub of Ms McKennitt’s claim was that a substantial part of the book revealed personal and private detail about her which she was entitled to keep private. That claim was brought against the background that Ms McKennitt was and is unusual amongst world-wide stars in the entertainment business as she very carefully guards her personal privacy. The Court of Appeal agreed with Eady J that this was a matter of ‘great importance’ when looking at matters that included Ms McKennitt’s personal and sexual relationships, her personal feelings in particular, in relation to her deceased fiancé who tragically died in a boating accident in 1998, matters relating to her health and diet and matters relating to her emotional vulnerability.

The Court of Appeal have now firmly tied together the UK domestic tort of ‘breach of confidence’ with the right to privacy set out in article 8 of the Human Rights Act 1998. This seems to follow Lord Nicholls in MGM v Campbellwho observed that “the time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence.” He went on to observe that “the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy“. In this case the Court of Appeal said in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10. Those articles are now not merely of persuasive or parallel effect but, as Lord Woolf says, are the very content of the domestic tort that the English court has to enforce. Accordingly, in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10

Eady J had held that some of the material was clearly confidential and had been gathered by Ash as part of their close relationship. But the Court needed to decide on how the Article 8 right of privacy might apply and the Court made stated that “there is little doubt that Von Hannover extends the reach of article 8 beyond what had previously been understood”. In finding for McKinnit the Court had to balance the right of privacy against the article 10 freedom of expression – and clearly found in favour of McKinnet. In this balancing act the Court of Appeal had to decide between the approach in A v B & C and Von Hannover. In A v B & C Lord Woolf made out a test that freedom of expression applied where the public had ‘an understandable and so a legitimate interest in being told’ information – so the press had a right to publish information if the public were interested in this – the public interest test was ‘what are the public interested in’. This can be compared to the more restrictive test in Von Hannover. In the latter the ECHR said that

a fundamental distinction needs to be made between reporting facts- even controversial ones- capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to imparting information and ideas on matters of public interest it does not do so in the latter case.”

The ECHR also said “Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life.”

The Court of Appeal sided firmly with Von Hannover saying “it seems clear that A v B cannot be read as any sort of binding authority on the content of articles 8 and 10. To find that content, therefore, we do have to look to Von Hannover and in so doing found that McKennit had a right to protect her privacy.

Niema Ash and another v Loreena McKennitt and others [2006] EWCA Civ 1714.

The Times Law Reports 20 th December 2006

Other relevant cases:

Von Hannover v Germany (2005) 40 EHRR 1 (European Court of Human Rights) see Law Updates August 2004

M v Secretary of State for Work and Pensions (2006) 2 AC 91[83]

Campbell v MGN (2004) 2 AC 457 Law Updates June 2004

Douglas v Hello! (No3) ( 2006) QB 125[53] see Law Updates June 2005

A v B & C (2002)

Finally on privacy, The Court of Appeal has confirmed the decision of Blackburne J in the High Court agreeing that HRH The Prince of Wales can maintain privacy in his private diaries (where he called some Chinese officials ‘appalling old waxworks’). The action was brought against the Mail on Sunday who sought to publish journal entries. Eight diaries were given to the newspaper by a former employee of the Prince, who breached a confidentiality agreement by copying the journals. The journals were copied at the time to a carefully selected group of 50 or so confidants close to the Prince. The newspaper had argued there was a public interest in knowing the prince’s attitude toward relations between Britain and China, as well as more about Charles’ conduct in his role as heir to the throne. However the Court held that the newspaper breached the Prince Charles’ confidentiality as well as his literary copyright in the journals.

No Comments

Comments are closed.