Goodwin v NGN Ltd

In privacy proceedings, the fact of a sexual relationship may attract a reasonable expectation of privacy, but that depends on the particular information and all the circumstances. The court must distinguish confidentiality from intrusion and assess each item of information separately. A senior executive’s relationship with a subordinate employee may raise legitimate questions about standards in public life and workplace conflicts of interest. However, publication cannot be justified by speculation that a private relationship might have distracted the executive from his work. Evidence of actual distraction or impropriety is required. The injunction was therefore varied to permit publication of the employee’s job description, while continuing to prohibit publication of her name and further private details.

Sir Frederick Goodwin obtained an interim injunction restraining NGN, publisher of The Sun, from publishing information about an alleged sexual relationship with VBN, an RBS employee. His identity had subsequently been disclosed, and NGN applied to identify VBN and publish her role at RBS. VBN opposed the application, relying on privacy and protection from intrusion. NGN relied on the public interest in discussion of relationships between senior executives and employees, including possible conflicts of interest and standards in public life. The central issues were whether the relationship and VBN’s identity or job description attracted a reasonable expectation of privacy, and whether publication should nevertheless be permitted under the Convention rights and Human Rights Act 1998.

1. Application partly successful. The injunction was varied to permit publication of VBN’s job description, but the prohibition on publication of her name remained.
2. The court applied the established two-stage approach. First, it asked whether the particular information attracted a reasonable expectation of privacy. If so, it then balanced the Article 8 and Article 10 rights, applying proportionality and the requirements of section 12 of the Human Rights Act 1998. Each item or class of information had to be considered separately.
3. The bare fact of a sexual relationship does not automatically attract privacy, nor does it automatically lose privacy. The answer depends on the particular circumstances. The sparse evidence meant that the parties could not establish a reasonable expectation of privacy in the bare fact of this relationship. In any event, the claimant’s position as chief executive and VBN’s employment in a senior position within the same organisation created a legitimate public interest in discussion of workplace relationships, power and standards in public life.
4. The court distinguished confidentiality from intrusion. Although VBN’s name could not be published because that would constitute a significant and disproportionate intrusion into her private and family life, publication of her job description served an important public-interest purpose. Its likely identification of her did not justify the same restraint, particularly because her name was already known to some acquaintances.
5. Speculation that a private relationship might have distracted a senior executive from his duties could not justify disclosure. A newspaper seeking to rely on actual distraction or breach of the RBS Code would need evidence. The evidence did not establish breach of the Code, distraction affecting RBS’s financial difficulties, or other serious impropriety. Publication of further details beyond the job description was likely to cause distress amounting to an abuse of press freedom.