Ash & Anor v McKennitt & Ors

Misuse of private information is determined in two stages. The court first asks whether the claimant had a reasonable expectation of privacy. If so, it balances that interest against freedom of expression, giving neither right automatic precedence.

A pre-existing relationship of confidence is highly material. A confidant cannot defeat privacy by describing the information as a shared experience. Selective disclosure does not expose an entire area of private life, and public curiosity about a well-known person is not itself a sufficient public interest. Information that is private by nature does not lose protection merely because the defendant’s account is false.

Ash & Anor v McKennitt & Ors concerned a book written by Ms Ash about her former close friend, Ms McKennitt. It disclosed information about personal relationships, bereavement, health, a home, contractual affairs and a settled property dispute. Ms McKennitt claimed breach of confidence and misuse of private information, relying also on contractual obligations.

Eady J, following a partly private trial, restrained publication of significant passages: [2005] EWHC 3003 (QB). Ms Ash appealed against the substantive order. She relied on her right to recount shared experiences, earlier disclosures by Ms McKennitt, Ms McKennitt’s public profile, alleged hypocrisy, the public character of some litigation documents and the alleged falsity of parts of the book.

The central issues were whether the information attracted article 8 protection and, if so, whether Ms Ash’s article 10 rights outweighed that protection.

1. Appeal dismissed unanimously. Buxton LJ delivered the leading judgment. Latham LJ agreed, and Longmore LJ entirely agreed. The judge had made no error of principle in balancing articles 8 and 10, so his assessment was not open to appellate interference.

2. English law recognises no freestanding domestic tort of invasion of privacy. Protection is afforded through breach of confidence, now commonly described as misuse of private information. Through section 6 of the Human Rights Act 1998, the courts absorb the rights protected by articles 8 and 10 into that action. The first question is whether the information is private, judged principally by whether the claimant had a reasonable expectation of privacy. If it is, the court must balance the competing rights. Neither right has automatic precedence; the court must focus intensely on their comparative importance, the justification for each interference and proportionality.

3. The pre-existing relationship of confidence was decisive to the character of the information. Ms Ash knew that intimate matters had been entrusted to her through a close friendship. The relationship did not make everything confidential, but it materially strengthened the expectation that the identified information would remain private. Personal grief, health, domestic arrangements and non-public contractual terms were properly protected.

4. The shared-experience argument failed. The book was substantively about Ms McKennitt, and Ms Ash could not invoke the confidential relationship that supplied the information to deny its confidential character. Nor did controlled disclosures about bereavement and water safety open an entire zone of private life to publication. The owner of private information may determine how much to disclose.

5. Public prominence and public curiosity did not by themselves justify publication. The broad approach in A v B plc [2003] QB 195 could not be treated as binding authority on the content of articles 8 and 10. The guidance in Von Hannover v Germany [2005] 40 EHRR 1 required a distinction between material contributing to public debate and details confined to private life. In any event, the result would have been the same under A v B plc. The alleged hypocrisy was unsupported by the facts.

6. A Tomlin order does not automatically make every connected matter confidential. Here, however, the detailed correspondence, motivations and private history behind the property dispute had never entered the public domain. Their private character survived settlement, although isolated public documents could not themselves be restrained.

7. The privacy inquiry concerns the nature of the information, not whether it is true. A defendant cannot remove article 8 protection merely by showing that private allegations are false. Falsity may nevertheless be relevant when assessing an asserted article 10 public-interest justification. The injunction was therefore upheld.

1. Court of Appeal (Civil Division): The court unanimously dismissed the substantive appeal and upheld the injunction: [2006] EWCA Civ 1714. A separate appeal concerning costs was not addressed.
2. High Court, Queen’s Bench Division: Eady J restrained further publication of significant passages of the book and refused permission to appeal: [2005] EWHC 3003 (QB).