Kaye v Robertson & Anor

English law did not recognise a general right of privacy, so an invasion of privacy alone could not justify an injunction. Existing causes of action had to be used. An interlocutory injunction for defamation remained confined to the clearest cases, despite general interim-injunction principles. Malicious falsehood supplied the effective basis where the proposed publication conveyed a false implication, publication was malicious, pecuniary loss was likely, and damages were inadequate. The clear-case approach applied to falsity and was satisfied on the evidence. Trespass to the person was not established, and passing off was unavailable because the claimant was not acting as a trader. Relief therefore had to be framed narrowly to restrain the misleading implication, rather than publication of all photographs or statements.

Gordon Kaye, a seriously injured actor, was photographed and interviewed in hospital by representatives of the defendants’ newspaper. The defendants intended to publish material implying that he had voluntarily consented to the interview and photographs. Potter J granted injunctions restraining publication, passing off, and statements concerning the interview. The defendants appealed. The Court of Appeal considered libel, malicious falsehood, trespass to the person, passing off, and the proper scope of interim relief. The central issue was whether existing causes of action could protect the claimant in the absence of a general privacy tort.

Glidewell LJ delivered the leading reasons. Bingham LJ agreed with them and with the order. Leggatt LJ also agreed, adding a separate comparative note on United States privacy law.

1. Privacy. English law recognised no general right to privacy and no freestanding cause of action for breach of privacy. The claimant therefore had to rely on established causes of action.
2. Libel. The proposed article was arguably defamatory by analogy with Tolley v. J.S. Fry & Sons Ltd [1931] AC 333, but the court could not say that a jury would inevitably find it libellous. The rule in William Coulson & Sons v. James Coulson & Co. [1887] 3 TLR 4, as confirmed in Herbage v. Times Newspapers Limited and Others unreported, 30 April 1981, remained applicable. Interlocutory relief in defamation was confined to the clearest cases. The general approach in American Cyanamid v. Ethicon [1975] AC 396 did not displace that special rule.
3. Malicious falsehood. The requirements were satisfied. The article conveyed a false implication; the journalists knew, or should have known, that the claimant could not give informed consent; and any publication would be malicious. Under s.3(1) of the Defamation Act 1952, written words calculated to cause pecuniary damage were sufficient. The claimant’s ability to sell his story was likely to be materially reduced, and damages would not be adequate. An interlocutory injunction was therefore justified.
4. Other causes of action. A deliberate bright light causing injury might amount to battery, but there was no evidence that the photographs caused actual damage and no anticipated further battery. An injunction could not be granted merely to prevent the defendants profiting from the alleged trespass. Passing off, applying Warnink v. J. Townsend & Sons [1979] AC 731, failed because the claimant was not acting as a trader.
5. Form of relief. The first and second injunctions were discharged. The third was replaced by a narrower injunction restraining publication of material reasonably understood to convey that the claimant had voluntarily permitted the photographs or interview. Later drafts did not remove the need for relief because the original draft had contained the objectionable implication. The delivery-up order was replaced by an undertaking for safe custody. The costs order below stood, with no order as to costs in the Court of Appeal.

Leggatt LJ observed obiter that United States law had developed privacy protection for intrusion upon physical solitude and commercial exploitation of celebrity identity, but considered that any general English right to privacy required legislation.

1. Court of Appeal (Civil Division): on appeal in [1990] EWCA Civ 21, allowed the appeal to the extent that the first two injunctions were discharged and the third was replaced by a narrower injunction.
2. High Court of Justice, Queen’s Bench Division: Potter J granted interim injunctions restraining publication, passing off, and statements concerning the claimant’s alleged consent to the interview and photographs.